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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) September 25, 1996
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Post Apartment Homes, L.P.
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(Exact name of registrant as specified in its charter)
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Georgia 0-28226 58-2053632
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
3350 Cumberland Circle, Atlanta, Georgia 30339
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(Address of principal executive offices) (Zip Code)
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Registrant's telephone number, including area code (770) 850-4400
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This document consists of ____ pages
The Exhibit Index is at page 4.
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Item 5. Other Events
Post Apartment Homes, L.P. (the "Registrant") is filing this Current
Report on Form 8-K so as to file with the Securities and Exchange Commission
certain items that are to be incorporated by reference into its Registration
Statement on Form S-3 (Registration No. 333-3555).
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Item 7. Financial Statements and Exhibits.
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(c) Exhibits.
1(a) - Purchase Agreement between the Registrant and the
Underwriters named therein dated as of September
25, 1996
1(b) - Purchase Agreement between Post Properties, Inc.
and the Underwriter named therein dated as of
September 26, 1996
4(a) - Indenture between the Registrant and SunTrust
Bank, Atlanta, as Trustee dated as of September
25, 1996
4(b) - Form of Note for series of 7 1/2% Notes due 2006
4(c) - Form of Note for series of 7 1/4% Notes due 2003
4(d) - Form of Amendment to Articles of Incorporation
designating the 8 1/2% Series A Cumulative
Redeemable Preferred Shares
4(e) - Form of Certificate for the 8 1/2% Series A
Cumulative Redeemable Preferred Shares
5 - Opinion of King & Spalding regarding legality of
2006 Notes and 2003 Notes and validity of 8 1/2%
Series A Cumulative Redeemable Preferred Shares
12 - Computation of Ratios of Earnings to Fixed
Charges
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
POST APARTMENT HOMES, L.P.
(Registrant)
By: POST PROPERTIES, INC.,
as general partner
Date: September 27, 1996 By: John A. Williams
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John A. Williams
Chairman of the Board,
Chief Executive Officer
and Director
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EXHIBIT INDEX
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Exhibit Number and Description Page
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1(a) - Purchase Agreement between the Registrant and the Underwriters
named therein
1(b) - Purchase Agreement between Post Properties, Inc. and the
Underwriter named therein
4(a) - Indenture between the Registrant and SunTrust Bank, Atlanta, as
Trustee
4(b) - Form of Note for series of 7 1/2% Notes due 2006
4(c) - Form of Note for series of 7 1/4% Notes due 2003
4(d) - Form of Amendment to Articles of Incorporation designating the 8
1/2% Series A Cumulative Redeemable Preferred Shares
4(e) - Form of Certificate for the 8 1/2% Series A Cumulative Redeemable
Preferred Shares
5 - Opinion of King & Spalding regarding legality of 2006 Notes and
2003 Notes and validity of 8 1/2% Series A Cumulative Redeemable
Preferred Shares
12 - Computation of Ratios of Earnings to Fixed Charges
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EXHIBIT 1(a)
POST APARTMENT HOMES, L.P.
(a Georgia limited partnership)
Debt Securities
PURCHASE AGREEMENT
September 25, 1996
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
250 Vesey Street
New York, New York 10281-1209
Ladies and Gentlemen:
Post Apartment Homes, L.P., a Georgia limited partnership (the
"Operating Partnership"), proposes to issue and sell up to $300,000,000
aggregate initial public offering price of its unsecured non-convertible debt
securities (the "Securities") in principal amounts, at prices and on terms to
be determined at the time of offering. The Securities will be issued in one or
more series under one or more indentures (each, an "Indenture"), between the
Operating Partnership and a trustee (a "Trustee"). Each series of Securities
may vary, as applicable, as to title, aggregate principal amount, rank,
interest rate or formula and timing of payments thereof, stated maturity date,
redemption and/or repayment provisions, sinking fund requirements and any other
variable terms established by or pursuant to the applicable Indenture. Unless
the context otherwise requires, as used herein, "you" and "your" shall mean the
parties to whom this Agreement is addressed together with the other parties, if
any, identified in the applicable Terms Agreement (as hereinafter defined) as
additional co-managers with respect to Underwritten Securities (as hereinafter
defined) purchased pursuant thereto.
Whenever the Operating Partnership determines to make an
offering of Securities through you, or through an underwriting syndicate
managed by you, the Operating Partnership will enter into an agreement (each a
"Terms Agreement") providing for the sale of such Securities (the "Underwritten
Securities") to, and the purchase and offering thereof by, you and such other
underwriters, if any, selected by you (the "Underwriters," which term shall
include you, whether acting as sole Underwriter or as a member of an
underwriting syndicate, as well as any Underwriter substituted pursuant to
Section 10 hereof). The Terms Agreement relating to the offering of
Underwritten Securities shall specify the aggregate principal amount of
Underwritten Securities to be initially issued (the "Initial Underwritten
Securities"), the name of each Underwriter participating in such offering
(subject to substitution as provided in Section 10 hereof) and the name of any
Underwriter other than you acting as co-manager in connection with such
offering, the aggregate principal amount of Initial Underwritten Securities
which each such
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Underwriter severally agrees to purchase, whether such offering is on a fixed
or variable price basis and, if on a fixed price basis, the initial offering
price, the price at which the Initial Underwritten Securities are to be
purchased by the Underwriters, the form, time, date and place of delivery and
payment and any delayed delivery arrangements of the Initial Underwritten
Securities and any other material variable terms of the Initial Underwritten
Securities (including, but not limited to, current ratings, designations,
denominations, interest rates or formulas, interest payment dates, maturity
dates and repayment provisions). In addition, if applicable, such Terms
Agreement shall specify whether the Operating Partnership has agreed to grant
to the Underwriters an option to purchase additional Securities to cover over-
allotments, if any, and the aggregate principal amount of Underwritten
Securities subject to such option (the "Option Underwritten Securities"). As
used herein, the term "Underwritten Securities" shall include the Initial
Underwritten Securities and all or any portion of any Option Underwritten
Securities. The Terms Agreement, which shall be substantially in the form of
Exhibit A hereto, may take the form of an exchange of any standard form of
written telecommunication between you and the Operating Partnership. Each
offering of Underwritten Securities through you as sole Underwriter or through
an underwriting syndicate managed by you will be governed by this Agreement, as
supplemented by the applicable Terms Agreement, and such Terms Agreement shall
inure to the benefit of and be binding upon each Underwriter participating in
the offering of such Underwritten Securities.
Post Properties, Inc., a Georgia corporation (the "Company"),
and the Operating Partnership have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-3555) for the registration of, among other securities, the Securities under
the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 430A or Rule 415 of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), and the Company and the Operating Partnership have filed such
amendments thereto as may have been required prior to the execution of the
applicable Terms Agreement. Such registration statement (as amended, if
applicable) has been declared effective by the Commission and an Indenture has
been qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). Such registration statement and the prospectus constituting a part
thereof (including in each case the information, if any, deemed to be part
thereof pursuant to Rule 430A(b) of the 1933 Act Regulations, and each
prospectus supplement relating to the offering of Underwritten Securities
pursuant to Rule 430A or Rule 415 of the 1933 Act Regulations (the "Prospectus
Supplement"), including all documents incorporated therein by reference, as
from time to time amended or supplemented pursuant to the 1933 Act, the
Securities Exchange Act of 1934, as amended (the "1934 Act"), or otherwise, are
collectively referred to herein as the "Registration Statement" and the
"Prospectus," respectively; provided, that if any revised Prospectus shall be
provided to you by the Operating Partnership for use in connection with the
offering of Underwritten Securities which differs from the Prospectus on file
at the Commission at the time the Registration Statement became effective
(whether or not such revised prospectus is required to be filed by the Company
or the Operating Partnership pursuant to Rule 424(b) of the 1933 Act
Regulations), the term "Prospectus" shall refer to each such revised prospectus
from and after the time it is first provided to you for such use; provided,
further, that a Prospectus Supplement shall be deemed to have supplemented the
Prospectus only with respect to the offering of Underwritten Securities to
which it relates. Any registration
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statement (including any supplement thereto or information which is deemed part
thereof) filed by the Operating Partnership under Rule 462(b) of the 1933 Act
Regulations (a "Rule 462(b) Registration Statement") shall be deemed to be part
of the Registration Statement. Any prospectus (including any amendment or
supplement thereto or information which is deemed part thereof) included in the
Rule 462(b) Registration Statement and any term sheet as contemplated by Rule
434 of the 1933 Act Regulations (a "Term Sheet") shall be deemed to be part of
the Prospectus. All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include
the filing of any document under the 1934 Act which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, preliminary prospectus
supplement, Prospectus or Prospectus Supplement or any Term Sheet or any
amendment or supplement to the foregoing shall be deemed to include the copy
filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system ("EDGAR").
The term "Subsidiary" as used herein means a corporation or a
partnership a majority of the outstanding equity interests, as the case may be,
of which is owned or controlled, directly or indirectly, by the Company or the
Operating Partnership, as the case may be, or by one or more other Subsidiaries
of the Company or the Operating Partnership.
SECTION 1. Representations and Warranties of the Operating
Partnership.
(a) The Operating Partnership represents and warrants to you,
as of the date hereof, and to you and each other Underwriter named in the
applicable Terms Agreement, as of the date thereof, as of the Closing Time (as
defined below) and, if applicable, as of each Date of Delivery (as defined
below) (in each case, a "Representation Date"), as follows:
(1) The Operating Partnership meets the
requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement, the Prospectus and any
Rule 462(b) Registration Statement has become effective under
the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement or any part thereof has been issued
under the 1933 Act and no proceeding for that purpose has been
instituted or is pending or, to the knowledge of the Operating
Partnership, is contemplated or threatened by the Commission
or by the state securities authority of any jurisdiction, and
any request on the part of the Commission for additional
information has been complied with. In addition, each
Indenture has been duly qualified under the 1939 Act. No
order preventing or suspending the use of the Prospectus has
been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Operating Partnership,
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threatened by the Commission or by the state securities
authority of any jurisdiction.
(2) The Registration Statement, at the time it
became effective, complied, and the Registration Statement and
the Prospectus, at each Representation Date will comply, in
all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and the 1939 Act and the rules
and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations"). The Registration Statement, at the
time the Registration Statement became effective, did not, and
as of each Representation Date will not, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading. At the date of the
Prospectus, at the Closing Time and at each Representation
Date, the Prospectus and any amendments and supplements
thereto (unless the term "Prospectus" refers to a prospectus
which has been provided to you by the Operating Partnership
for use in connection with an offering of Underwritten
Securities which differs from the Prospectus on file at the
Commission at the time the Registration Statement became
effective, in which case at the time it is first provided to
you for such use) did not and will not contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
If the Operating Partnership elects to rely upon Rule 434 of
the 1933 Act Regulations, the Operating Partnership will
comply with the requirements of Rule 434. Notwithstanding the
foregoing, the representations and warranties in this
subsection shall not apply to statements in or omissions from
the Registration Statement or the Prospectus made in reliance
upon and in conformity with information furnished to the
Operating Partnership in writing by any Underwriter through
you expressly for use in the Registration Statement or the
Prospectus or to that part of the Registration Statement which
shall constitute the Statement of Eligibility and
Qualification on Form T-1 under the 1939 Act (the "Statement
of Eligibility") of the Trustee under the Indenture. If a
Rule 462(b) Registration Statement is required in connection
with the offering and sale of the Underwritten Securities, the
Operating Partnership has complied or will comply with the
requirements of Rule 111 of the 1933 Act Regulations relating
to the payment of filing fees therefor.
(3) Each preliminary prospectus, preliminary
prospectus supplement and Prospectus Supplement filed as part
of the Registration Statement as originally filed or as part
of any amendment thereto, or filed pursuant to Rule 424 under
the 1933 Act, complied, when so filed, in all material
respects with the 1933 Act Regulations and, if applicable,
each preliminary prospectus and the Prospectus delivered to
the Underwriters for use in connection with the offering of
Underwritten Securities will, at the time of such delivery, be
identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
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(4) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations") and, when read
together with the other information in the Prospectus, at the
time the Registration Statement became effective and as of
each Representation Date or during the period specified in
Section 3(f), did not and will not include an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
(5) Price Waterhouse LLP, the accounting firm that
certified the financial statements and supporting schedules
included in, or incorporated by reference into, the
Registration Statement and the Prospectus, is an independent
public accountant as required by the 1933 Act and the 1933 Act
Regulations.
(6) The consolidated financial statements of the
Company and the Operating Partnership incorporated by
reference into the Registration Statement and the Prospectus,
together with the related schedules and notes, as well as
those financial statements, schedules and notes of any other
entity included therein, present fairly the financial position
of the Company, the Operating Partnership and their
consolidated subsidiaries, or such other entities, as the case
may be, at the respective dates indicated and the statement of
operations, stockholders' equity, partners' equity, and cash
flows of the Company, the Operating Partnership and their
consolidated subsidiaries, or such other entities, as the case
may be, for the periods specified. Such financial statements
have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if
any, included in, or incorporated by reference into, the
Registration Statement and the Prospectus present fairly the
information required to be stated therein. The selected
financial data and the summary financial information included
in, or incorporated by reference into, the Prospectus present
fairly the information shown therein and have been compiled on
a basis consistent with that of the audited financial
statements included in, or incorporated by reference into, the
Registration Statement and the Prospectus. The Company's and
the Operating Partnership's ratios of earnings to fixed
charges (actual and, if any, pro forma) included in the
Prospectus under the captions "Ratios of Earnings to Fixed
Charges" and in Exhibit 12.1 to the Registration Statement
have been calculated in compliance with Item 503(d) of
Regulation S-K of the Commission. In addition, any pro forma
financial statements included in, or incorporated by reference
into, the Registration Statement and the Prospectus comply in
all material respects with the applicable requirements of Rule
11-02 of Regulation S-X of the Commission, and the assumptions
used in the preparation thereof are, in
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the opinion of the Company, reasonable and the adjustments
used therein are appropriate to give effect to the
transactions and circumstances referred to therein and have
been properly applied to the historical amounts in the
compilation of such statements. Other than the historical
financial statements (and schedules) included therein, no
other historical or pro forma financial statements (or
schedules) are required by the 1933 Act or the 1933 Act
Regulations to be included in the Registration Statement.
(7) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, assets, business affairs or
business prospects of the Operating Partnership and its
Subsidiaries considered as one enterprise (a "Material Adverse
Effect"), whether or not arising in the ordinary course of
business; (B) no casualty loss or condemnation or other
adverse event with respect to any of the interests held
directly or indirectly in any of the real properties owned,
directly or indirectly, by the Operating Partnership or its
Subsidiaries (the "Properties") has occurred that is material
to the Operating Partnership and its Subsidiaries considered
as one enterprise; (C) there have been no transactions entered
into by the Operating Partnership or any Subsidiary, other
than those arising in the ordinary course of business, which
are material with respect to the Operating Partnership and its
Subsidiaries considered as one enterprise or that would
result, upon consummation, in any material inaccuracy in the
representations contained in Section 1(a)(6) above; (D)
neither the Operating Partnership nor any Subsidiary has
incurred any material obligation or liability, direct,
contingent or otherwise; and (E) there has been no material
change in the short-term debt or long-term debt of the
Operating Partnership.
(8) The Operating Partnership has been duly formed
and is validly existing as a limited partnership in good
standing under the Georgia Revised Uniform Limited Partnership
Act (the "Georgia Act") with partnership power and authority
to own, lease and operate its properties, to conduct the
business in which it is engaged and to enter into and perform
its obligations under this Agreement, the Terms Agreement and
the other agreements to which it is a party. The Operating
Partnership is duly qualified or registered as a foreign
partnership and is in good standing in the State of Florida,
the Commonwealth of Virginia and each other jurisdiction in
which such qualification or registration is required, whether
by reason of the ownership, leasing or management of property
or the conduct of business, except where the failure to so
qualify or register would not have a Material Adverse Effect.
(9) Each of the Subsidiaries has been duly formed
and is validly existing and in good standing under the laws of
its jurisdiction of organization with partnership or corporate
power and authority to conduct the business in which it is
engaged and to own, lease and operate its properties as
described in the
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Prospectus and to enter into and perform its obligations under
any agreements to which it is a party. Each of the
Subsidiaries is duly qualified as a foreign partnership,
corporation or other organization to transact business and is
in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership
or leasing of property, the management of properties by others
or the conduct of business, except where the failure to so
qualify would not have a Material Adverse Effect.
(10) The capitalization of the Operating
Partnership is as set forth in the Prospectus and all of the
outstanding partnership interests in the Operating Partnership
have been duly authorized and validly issued and the capital
contributions with respect thereto have been made in full; and
the partnership interests owned by the Company are owned in
the percentage amount set forth in the Prospectus free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. The Company is the sole general
partner of the Operating Partnership.
(11) All of the issued and outstanding shares of
capital stock and partnership interests, as the case may be,
of each Subsidiary have been validly issued and fully paid and
are owned by the Operating Partnership, the Company, another
Subsidiary, and/or certain affiliated entities as described in
the Registration Statement, in each case free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim
or equity, other than the transfer restrictions set forth in
the Option and Transfer Agreement by and among the Operating
Partnership, Post Services, Inc., John A. Williams and John T.
Glover. The Operating Partnership owns no direct or indirect
equity interest in any entity other than its Subsidiaries.
(12) Except for transactions described in the
Prospectus, there are no outstanding rights, warrants or
options to acquire, or instruments convertible into or
exchangeable for, or agreements or understandings with respect
to the sale or issuance of, any shares of capital stock or
partnership or other equity interest in the Operating
Partnership or any Subsidiary.
(13) The Operating Partnership has full power and
authority to enter into and perform its obligations under this
Agreement, the applicable Terms Agreement and the Delayed
Delivery Contracts (as defined in Section 2 hereof), if any,
and this Agreement has been, and as of each Representation
Date, the applicable Terms Agreement and the Delayed Delivery
Contracts, if any, will have been, duly authorized, executed
and delivered by the Operating Partnership and, assuming due
authorization, execution and delivery by the other parties
thereto, each is a valid and binding agreement of the
Operating Partnership enforceable against the Operating
Partnership in accordance with its terms, except as (A) the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally,
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(B) the availability of equitable remedies may be limited by
equitable principles of general applicability, and (C) rights
to indemnity and contribution thereunder may be limited by
state or federal securities laws or the public policy
underlying such laws.
(14) The Indenture (A) has been duly and validly
authorized, and when executed and delivered by the Operating
Partnership, and assuming due authorization, execution and
delivery by the trustee, will constitute a valid and binding
obligation of the Operating Partnership, enforceable against
the Operating Partnership in accordance with its terms, except
as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability; and
(B) conforms in all material respects to the description
thereof in the Prospectus.
(15) The Underwritten Securities have been, or as
of the date of such Terms Agreement will have been, duly
authorized by the Operating Partnership for issuance and sale
pursuant to this Agreement, such Terms Agreement and any
Delayed Delivery Contract. Such Underwritten Securities, when
issued and authenticated in the manner provided for in the
applicable Indenture and delivered against payment of the
consideration therefor specified in such Terms Agreement, will
constitute valid and legally binding obligations of the
Operating Partnership, entitled to the benefits of the
Indenture enforceable against the Operating Partnership in
accordance with its terms, except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
or affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
Such Underwritten Securities will be in the form contemplated
by, and each registered holder thereof is entitled to the
benefits of, the applicable Indenture. Upon payment of the
purchase price and delivery of such Underwritten Securities in
accordance herewith, each of the Underwriters will receive
good, valid and marketable title to such Underwritten
Securities, free and clear of all security interests,
mortgages, pledges, liens, encumbrances, claims and equities.
The terms of such applicable Underwritten Securities conform
in all material respects to all statements and descriptions
related thereto contained in the Prospectus. Such
Underwritten Securities rank and will rank on a parity with
all unsecured and unsubordinated indebtedness of the Operating
Partnership that is outstanding on the Delivery Date or that
may be incurred thereafter, except that such Underwritten
Securities will be effectively subordinated to the prior
claims of each secured mortgage lender to any specific
Property which secures such lender's mortgage.
(16) Neither the Operating Partnership nor any of
its Subsidiaries is in violation of its charter, by-laws,
certificate of limited partnership, partnership
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agreement or LLC agreement, as the case may be, or in default
in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which it or any of them is
a party or by which any of them may be bound, or to which any
of their property or assets is subject, except for such
defaults that would not result in a Material Adverse Effect.
The execution, delivery and performance of this Agreement or
the applicable Terms Agreement or each applicable Indenture
and the transactions contemplated herein or therein, including
the issuance, sale and delivery of the Underwritten Securities
and the use of the proceeds from the sale of the Underwritten
Securities as described in the Prospectus under the caption
"Use of Proceeds," and compliance by the Operating Partnership
with its obligations hereunder and thereunder, (A) do not and
will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined below) under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of the
Operating Partnership or any of its Subsidiaries pursuant to,
any material contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or
instrument to which the Operating Partnership or any of its
Subsidiaries is a party or by which it or any of them may be
bound, or to which any of their properties or assets is
subject, nor (B) will such action result in any violation of
the provisions of the (i) charter, bylaws, LLC agreement or
partnership agreement of the Operating Partnership or any
Subsidiary, as the case may be, or (ii) any applicable law,
statute, rule, regulation, judgment, order, writ or decree of
any government, government agency or court, domestic or
foreign, having jurisdiction over the Operating Partnership or
any Subsidiary or any of their assets, properties or
operations. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of
such indebtedness by the Operating Partnership or any
subsidiary.
(17) No labor dispute with the employees of the
Company, the Operating Partnership or any Subsidiary exists
or, to the knowledge of the Operating Partnership, is
imminent, which may result in a Material Adverse Effect.
(18) There is no action, suit or proceeding before
or by any court or governmental agency or body, domestic or
foreign, now pending, or to the knowledge of the Operating
Partnership threatened against or affecting the Operating
Partnership, any Subsidiary thereof, any Property or any
officer or director of the foregoing, which is required to be
disclosed in the Registration Statement and the Prospectus
(other than as stated therein), or which might result in a
Material Adverse Effect, or which might materially and
adversely affect the consummation of this Agreement, the
applicable Terms Agreement or any applicable Indenture or any
Delayed Delivery Contracts or the transactions
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contemplated herein or therein. There is no pending legal or
governmental proceedings to which the Operating Partnership or
any Subsidiary is a party or of which any of their respective
assets or properties is subject which might result in a
Material Adverse Effect.
(19) There are no contracts or documents of the
Company or the Operating Partnership which are required to be
described in the Registration Statement, the Prospectus or the
documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and/or filed
as required.
(20) No authorization, approval or consent of any
court or governmental authority or agency is necessary or
required for the performance by the Operating Partnership of
its obligations under this Agreement or the applicable Terms
Agreement or in connection with the transactions contemplated
under this Agreement, such Terms Agreement or any applicable
Indenture, except such as have been already obtained or as may
be required under the 1933 Act, the 1939 Act, the 1933 Act
Regulations or state securities or real estate syndication
laws.
(21) The Operating Partnership and its Subsidiaries
own or possess, trademarks, service marks, trade names or
other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by
them, and neither the Operating Partnership nor any of its
Subsidiaries has received any notice or is otherwise aware of
any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Operating
Partnership or any of its Subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would result in a Material Adverse
Effect.
(22) Each of the Operating Partnership and its
Subsidiaries has all permits, licenses, approvals, consents,
certificates and other authorizations of and from
(collectively, "Governmental Licenses") and has made all
declarations and filings with all appropriate federal, state,
local, foreign and other governmental authorities, all self
regulatory organizations and all courts and other tribunals
required for it to own, lease, license and use its properties
and assets and to conduct its business in the manner described
in the Registration Statement and the Prospectus, other than
such Governmental Licenses the absence of which, singly or in
the aggregate, could result in a Material Adverse Effect.
Neither the Operating Partnership nor any of its Subsidiaries
has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
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<PAGE> 11
(23) (A) The Operating Partnership has good and
marketable fee simple title to the land underlying the
Properties (or, in the case of the Property known as "Post
Renaissance," a good and marketable leasehold interest in the
land underlying such Property) and good and marketable title
to the improvements thereon and all other assets that are
required for the effective operation of such Properties in the
manner in which they currently are operated, subject, however,
to existing mortgages on such Properties, to utility easements
serving such Properties, to liens of ad valorem taxes not due
and payable as of the Closing Time, to zoning and similar
governmental land use matters affecting such Properties that
are consistent with the current uses of such Properties, to
matters of title not adversely affecting marketability of
title to such Properties, other statutory liens not due and
payable as of the Closing Time, title matters that may be
material in character, amount or extent but which do not
materially detract from the value, or interfere with the use
of, the Properties or otherwise materially impair the business
operations being conducted or proposed to be conducted
thereon, ownership of cable television lines and facilities
serving one or more of such Properties by the cable television
providers or their affiliates, service marks and trade names
used in connection with such Properties, and ownership by
others of certain items of equipment and other items of
personal property that are not material to the conduct of
business operations at such Properties; (B) the ground lease
under which the Operating Partnership leases the land on which
the Property known as "Post Renaissance" is located is in full
force and effect, and the Operating Partnership is not in
default in respect of any of the terms or provisions of such
lease and the Operating Partnership has not received notice of
the assertion of any claim by anyone adverse to the Operating
Partnership's rights as lessee under such lease, or affecting
or questioning the Operating Partnership's right to the
continued possession or use of the Property under such lease
or of a default under such lease, other than claims which
would not have a Material Adverse Effect; (C) all liens,
charges, encumbrances, claims, or restrictions on or affecting
any of the Properties and the assets of the Operating
Partnership or any Subsidiary which are required to be
disclosed in the Prospectus are disclosed therein; (D) none of
the Operating Partnership or any tenant of any of the
Properties is in default under any of the leases pursuant to
which the Operating Partnership, as lessor, leases its
Property (and the Operating Partnership does not know of any
event which, but for the passage of time or the giving of
notice, or both, would constitute a default under any of such
leases) other than such defaults that would not have a
Material Adverse Effect; (E) no person has an option or right
of first refusal to purchase all or part of any Property or
any interest therein; (F) each of the Properties complies with
all applicable codes, laws and regulations (including, without
limitation, building and zoning codes, laws and regulations
and laws relating to access to the Properties), except to the
extent disclosed in the Prospectus and except for such
failures to comply that would not individually or in the
aggregate have a Material Adverse Effect; (G) the Operating
Partnership does not have knowledge of any pending or
threatened condemnation proceedings, zoning change, or other
similar proceeding or action that will in any
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<PAGE> 12
manner affect the size of, use of, improvements on,
construction on or access to the Properties, except such
proceedings or actions that would not have a Material Adverse
Effect; and (H) other than with respect to the Property known
as "Post Woods," the Operating Partnership is the beneficiary
of title insurance on the Properties in amounts that were
commercially reasonable at the time such policies were issued,
and in each case such title insurance is in full force and
effect.
(24) The Operating Partnership is not, and upon the
issuance and sale of the Underwritten Securities as herein
contemplated and the application of the net proceeds therefrom
as described in the Prospectus will not be, an "investment
company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act"), or is or will become a
"holding company" or a "subsidiary company" of a "registered
holding company," as defined in the Public Utility Holding
Company Act of 1935, as amended.
(25) Except as disclosed in the Prospectus, (A)
each Property, including, without limitation, the Environment
(as defined below) associated with each Property, is free of
any Hazardous Substance (as defined below) in violation of any
Environmental Law (as defined below) applicable to the
Properties, except for any Hazardous Substance that would not
have any Material Adverse Effect; (B) neither the Operating
Partnership nor any Subsidiary has caused or suffered to occur
any Release (as defined below) of any Hazardous Substance into
the Environment on, in, under or from any Property in
violation of any Environmental Law applicable to such
Property, and no condition exists on, in or under any Property
or, to the knowledge of the Operating Partnership, any
property adjacent to any Property that could result in the
occurrence of material liabilities under, or any material
violations of, any Environmental Law applicable to such
Property, give rise to the imposition of any Lien (as defined
below) under any Environmental Law, or cause or constitute a
health, safety or environmental hazard to any property, person
or entity; (C) neither the Operating Partnership nor any
Subsidiary is engaged in or intends to engage in any
manufacturing or any similar operations at any Property that
(1) require the use, handling, transportation, storage,
treatment or disposal of any Hazardous Substance (other than
paints, stains, cleaning solvents, insecticides, herbicides,
or other substances that are used in the ordinary course of
operating any Property and in compliance with all applicable
Environmental Laws) or (2) require permits or are otherwise
regulated pursuant to any Environmental Law; (D) neither the
Operating Partnership nor any Subsidiary has received any
notice of a claim under or pursuant to any Environmental Law
applicable to a Property or under common law pertaining to
Hazardous Substances on any Property or pertaining to other
property at which Hazardous Substances generated at any
Property have come to be located; (E) neither the Operating
Partnership nor any Subsidiary has received any notice from
any Governmental Authority (as defined below) claiming any
violation of any Environmental Law that is uncured or
unremediated as of the date hereof; and (F) no Property (1) is
included or, to the knowledge of the Operating
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<PAGE> 13
Partnership or any Subsidiary, proposed for inclusion on the
National Priorities List issued pursuant to CERCLA (as defined
below) by the United States Environmental Protection Agency
(the "EPA") or on the Comprehensive Environmental Response,
Compensation, and Liability Information System database
maintained by the EPA as a potential CERCLA removal, remedial
or response site or (2) is included or proposed for inclusion
on, any similar list of potentially contaminated sites
pursuant to any other applicable Environmental Law nor has the
Operating Partnership, or any subsidiary received any written
notice from the EPA or any other Governmental Authority
proposing the inclusion of any Property on such list.
As used herein, "Hazardous Substance" shall include,
without limitation, any hazardous substance, hazardous waste,
toxic or dangerous substance, pollutant, solid waste or
similarly designated materials, including, without limitation,
oil, petroleum, or any petroleum-derived substance or waste,
asbestos or asbestos-containing materials, PCBs, pesticides,
explosives, radioactive materials, dioxins, urea formaldehyde
insulation or any constituent of any such substance, pollutant
or waste, including any such substance, pollutant or waste
identified, listed or regulated under any Environmental Law
(including, without limitation, materials listed in the United
States Department of Transportation Optional Hazardous
Material Table, 49 C.F.R. Section 172.101, as the same may
now or hereafter be amended, or in the EPA's List of Hazardous
Substances and Reportable Quantities, 40 C.F.R. Part 3202, as
the same may now or hereafter be amended); "Environment" shall
mean any surface water, drinking water, ground water, land
surface, subsurface strata, river sediment, buildings,
structures, and ambient, workplace and indoor air;
"Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act, as amended (42
U.S.C. Section 9601, et seq.) ("CERCLA"), the Resource
Conservation Recovery Act, as amended (42 U.S.C. Section
6901, et seq.), the Clean Air Act, as amended (42 U.S.C.
Section 7401, et seq.), the Clean Water Act, as amended (33
U.S.C. Section 1251, et seq.), the Toxic Substances Control
Act, as amended (15 U.S.C. Section 2601 et seq.), the
Occupational Safety and Health Act of 1970, as amended (29
U.S.C. Section 651, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Section 1801, et
seq.), together with all rules, regulations and orders
promulgated thereunder and all other federal, state and local
laws, ordinances, rules, regulations and orders relating to
the protection of the environment or of human health from
environmental effects; "Governmental Authority" shall mean any
federal, state or local governmental office, agency or
authority having the duty or authority to promulgate,
implement or enforce any Environmental Law; "Lien" shall mean,
with respect to any Property, any material mortgage, deed of
trust, pledge, security interest, lien, encumbrance, penalty,
fine, charge, assessment, judgment or other liability in, on
or affecting such Property; and "Release" shall mean any
spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, emanating
or disposing of any Hazardous Substance into the Environment
including, without limitation, the
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<PAGE> 14
abandonment or discard of barrels, containers, tanks
(including, without limitation, underground storage tanks) or
other receptacles containing or previously containing any
Hazardous Substance or any release, emission, discharge or
similar term, as those terms are defined or used in any
Environmental Law.
(26) Each of the Operating Partnership and its
Subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in
which they are engaged.
(27) The assets of the Operating Partnership do not
constitute "plan assets" under the Employee Retirement Income
Security Act of 1974, as amended.
(28) The mortgages and deeds of trust encumbering
the properties and assets described in general in the
Prospectus are not convertible and are not cross-defaulted or
cross-collateralized to any property not owned by the
Operating Partnership or any of its Subsidiaries; except as
disclosed in the Prospectus, none of the Operating Partnership
or any of its Subsidiaries holds participating interests in
such mortgages and deeds of trust.
(29) The partnership agreement of the Operating
Partnership (the "Operating Partnership Agreement") has been
duly authorized, executed and delivered by the parties thereto
and constitutes the valid agreement thereof, enforceable in
accordance with its terms, except as (A) the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally and (B) the availability of
equitable remedies may be limited by equitable principles of
general applicability; and the execution, delivery and
performance of the Operating Partnership Agreement did not, at
the time of execution and delivery, and does not constitute a
breach of, or default under any material contract, lease or
other instrument to which the Operating Partnership is a party
or by which its properties may be bound or any law,
administrative regulation or administrative or court decree.
(31) The Company was organized and has operated in
conformity with the requirements for qualification and
taxation as a REIT for its taxable years ending December 31,
1993, 1994 and 1995, and its current organization and method
of operation should enable it to continue to meet the
requirements for qualification and taxation as a REIT.
(32) The Operating Partnership and each of the
Subsidiary Partnerships are properly classified as
partnerships, and not as corporations or as associations
taxable as corporations, for Federal income tax purposes
throughout the period from July 22, 1993 through the date
hereof, or, in the case of any Subsidiary
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<PAGE> 15
Partnerships that have terminated, through the date of
termination of such Subsidiary Partnershps.
(33) Each of the Company, the Operating Partnership
and its Subsidiaries has filed all federal, state, local and
foreign income tax returns which have been required to be
filed (except in any case in which the failure to file would
not have a Material Adverse Effect) and has paid all taxes
required to be paid and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing is
due and payable, except, in all cases, for any such tax,
assessment, fine or penalty that is being contested in good
faith.
(b) Any certificate signed by any officer of the
Operating Partnership (or any officer of the Company), or of any Subsidiary,
and delivered to you or to counsel for the Underwriters in connection with the
offering of the Underwritten Securities shall be deemed a representation and
warranty by the Operating Partnership to each Underwriter as to the matters
covered thereby on the date of such certificate and, unless subsequently
amended or supplemented, at each Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) The several commitments of the Underwriters to
purchase the Underwritten Securities pursuant to the applicable Terms Agreement
shall be deemed to have been made on the basis of the representations and
warranties herein contained and shall be subject to the terms and conditions
set forth herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Operating Partnership may grant, if so provided in the applicable
Terms Agreement relating to the Initial Underwritten Securities, an option to
the Underwriters named in such Terms Agreement, severally and not jointly, to
purchase up to the aggregate principal amount, as the case may be, of the
Option Underwritten Securities set forth therein at a price per Option
Underwritten Security equal to the price per Initial Underwritten Security,
less an amount equal to any distributions declared by the Operating Partnership
and paid or payable on the Initial Underwritten Securities but not payable on
the Option Underwritten Securities. Such option, if granted, will expire 30
days or such lesser number of days as may be specified in the applicable Terms
Agreement after the Representation Date relating to the Initial Underwritten
Securities, and may be exercised in whole or in part from time to time only for
the purpose of covering over-allotments which may be made in connection with
the offering and distribution of the Initial Underwritten Securities upon
notice by you to the Operating Partnership, as the case may be, setting forth
the aggregate principal amount of Option Underwritten Securities as to which
the several Underwriters are then exercising the option and the time, date and
place of payment and delivery for such Option Underwritten Securities. Any
such time and date of payment and delivery (each, a "Date of Delivery") shall
be determined by you, but shall not be later than seven full business days and
not be earlier than two full business days after the exercise of said option,
unless otherwise agreed upon by you and the Operating Partnership. If the
option is exercised as to all or any portion of the Option Underwritten
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<PAGE> 16
Securities, each of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total aggregate principal amount of Option
Underwritten Securities then being purchased which the aggregate principal
amount of Initial Underwritten Securities each such Underwriter has severally
agreed to purchase as set forth in such Terms Agreement bears to the total
aggregate principal amount of Initial Underwritten Securities, subject to such
adjustments as you in your discretion shall make to eliminate any sales or
purchases of fractional Option Underwritten Securities.
(c) Payment of the purchase price for, and delivery of,
the Initial Underwritten Securities to be purchased by the Underwriters shall
be made at the offices of Hogan & Hartson L.L.P., 555 Thirteenth Street, N.W.,
Washington, D.C. 20004, or at such other place as shall be agreed upon by you
and the Operating Partnership, at 10:00 a.m. (Eastern time) on the fourth
business day (or the third business day if required under Rule 15c6-1 of the
1934 Act, or unless postponed in accordance with the provisions of Section 10)
following the date of the applicable Terms Agreement, or such other time as
shall be agreed upon by you and the Operating Partnership (each such time and
date of payment and delivery being herein called a "Closing Time"). In
addition, in the event that the Underwriters have exercised their option, if
any, to purchase any or all of the Option Underwritten Securities, payment of
the purchase price for, and delivery of such Option Underwritten Securities,
shall be made at the above-mentioned offices of Hogan & Hartson L.L.P., or at
such other place as shall be agreed upon by you and the Operating Partnership,
on the relevant Date of Delivery as specified in the notice from you to the
Operating Partnership.
Payment shall be made to the Operating Partnership, by wire
transfer or by certified or official bank check or checks drawn in Federal or
similar same-day funds payable to the order of the Operating Partnership, as
applicable, against delivery to you for the respective accounts of the
Underwriters of the Underwritten Securities to be purchased by them. It is
understood that each Underwriter has authorized you, for its account, to accept
delivery of, receipt for, and make payment of the purchase price, for the
Underwritten Securities which it has severally agreed to purchase. You,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Underwritten
Securities to be purchased by any Underwriter whose check has not been received
by the Closing Time or the relevant Date of Delivery, as the case may be, but
such payment shall not relieve such Underwriter from its obligations hereunder.
(d) The Underwritten Securities shall be in such
authorized denominations and registered in such names as you may request in
writing at least two full business days prior to the applicable Closing Time or
the relevant Date of Delivery, as the case may be. The Underwritten Securities
will be made available for examination and packaging by you on or before the
first business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
If authorized by the applicable Terms Agreement, the
Underwriters named therein may solicit offers to purchase Underwritten
Securities from the Operating Partnership pursuant to delayed delivery
contracts ("Delayed Delivery Contracts") substantially in the form of Exhibit B
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<PAGE> 17
hereto with such changes therein as the Operating Partnership may approve. As
compensation for arranging Delayed Delivery Contracts, the Operating
Partnership will pay to you at Closing Time, for the respective accounts of the
Underwriters, a fee specified in the applicable Terms Agreement for each of the
Underwritten Securities for which Delayed Delivery Contracts are made at the
applicable Closing Time as is specified in the applicable Terms Agreement. Any
Delayed Delivery Contracts are to be with institutional investors of the types
described in the Prospectus. At the applicable Closing Time, the Operating
Partnership will enter into Delayed Delivery Contracts (for not less than the
minimum principal amount of Underwritten Securities per Delayed Delivery
Contract specified in the applicable Terms Agreement) with all purchasers
proposed by the Underwriters and previously approved by the Operating
Partnership as provided below, but not for an aggregate principal amount of
Underwritten Securities in excess of that specified in the applicable Terms
Agreement. The Underwriters will not have any responsibility for the validity
or performance of Delayed Delivery Contracts.
You shall submit to the Operating Partnership, at least three
business days prior to the applicable Closing Time, the names of any
institutional investors with which it is proposed that the Operating
Partnership will enter into Delayed Delivery Contracts and the principal amount
of Underwritten Securities to be purchased by each of them, and the Operating
Partnership will advise you, at least two business days prior to the applicable
Closing Time, of the names of the institutions with which the making of Delayed
Delivery Contracts is approved by the Operating Partnership and the principal
amount of Underwritten Securities to be covered by each such Delayed Delivery
Contract.
The principal amount of Underwritten Securities agreed to be
purchased by the several Underwriters pursuant to the applicable Terms
Agreement shall be reduced by the principal amount of Underwritten Securities
covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a
written notice delivered by you to the Operating Partnership; provided,
however, that the total number or principal amount of Underwritten Securities
to be purchased by all Underwriters shall be the total principal amount of
Underwritten Securities covered by the applicable Terms Agreement, less the
principal amount of Underwritten Securities covered by Delayed Delivery
Contracts.
SECTION 3. Covenants of the Operating Partnership. Each of
the Company and the Operating Partnership covenants with you and with each
Underwriter participating in the offering of Underwritten Securities, as
follows:
(a) In respect of each offering of Underwritten
Securities, the Operating Partnership will prepare a
Prospectus Supplement setting forth the principal amount of
Underwritten Securities covered thereby and their terms not
otherwise specified in the Prospectus or the Indenture
pursuant to which the Underwritten Securities are being
issued, the names of the Underwriters participating in the
offering and the principal amount of Underwritten Securities
which each severally has agreed to purchase, the names of the
Underwriters acting as co-managers in connection with the
offering, the price at which the Underwritten Securities are
to be purchased by the Underwriters from the Operating
Partnership, the initial
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<PAGE> 18
public offering price, if any, the selling concession and
reallowance, if any, any delayed delivery arrangements, and
such other information as you and the Operating Partnership
deem appropriate in connection with the offering of the
Underwritten Securities; and the Operating Partnership will
promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations within the time period required by such Rule and
will furnish to the Underwriters named therein as many copies
of the Prospectus and such Prospectus Supplement as you shall
reasonably request. If, at the time that the Registration
Statement becomes effective, any information shall have been
omitted therefrom in reliance upon Rule 430A of the 1933 Act
Regulations, then immediately following execution of the
applicable Terms Agreement, the Operating Partnership will
prepare, and file or transmit for filing with the Commission
in accordance with such Rule 430A and Rule 424(b) of the 1933
Act Regulations, copies of an amended Prospectus or, if
required by such Rule 430A, a post-effective amendment to the
Registration Statement (including an amended Prospectus),
including all information so omitted.
(b) The Operating Partnership will notify you
immediately, and confirm such notice in writing, of (i) the
effectiveness of any amendment to the Registration Statement,
(ii) the transmittal to the Commission for filing of any
Prospectus Supplement or other supplement or amendment to the
Prospectus or any document to be filed pursuant to the 1934
Act, (iii) the receipt of any comments from the Commission,
(iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (v) the issuance
by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the
Underwritten Securities or offering or sale in any
jurisdiction, or of any proceedings for any of such purposes;
and the Operating Partnership will make every reasonable
effort to prevent the issuance of any such stop order and, if
any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(c) At any time when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act in connection
with sales of the Underwritten Securities, the Operating
Partnership will give you notice of its intention to file or
prepare any amendment to the Registration Statement (including
any filing under Rule 462(b) of the 1933 Act Regulations), any
Term Sheet or any amendment, supplement or revision to either
the prospectus included in the Registration Statement at the
time it became effective or to the Prospectus, whether
pursuant to the 1933 Act, the 1934 Act or otherwise, and will
furnish you with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the
case may be, and will not file or use any such document to
which you or counsel for the Underwriters shall object.
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<PAGE> 19
(d) The Operating Partnership has furnished or
will deliver to you and counsel for the Underwriters, without
charge, as many signed copies of the Registration Statement as
originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein
and documents incorporated or deemed to be incorporated by
reference therein) and copies of all consents and certificates
of experts, and will also deliver to you without charge, as
many conformed copies of the Registration Statement as
originally filed and of each amendment thereto (without
exhibits) as you may reasonably request. The copies of the
Registration Statement and each amendment thereto furnished to
the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(e) The Operating Partnership will deliver to each
Underwriter, without charge, as many copies of each
preliminary prospectus as such Underwriter may reasonably
request, and the Operating Partnership hereby consents to the
use of such copies for purposes permitted by the 1933 Act.
The Operating Partnership will furnish to each Underwriter,
without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the Prospectus as such Underwriter
may reasonably request. If applicable, the Prospectus and any
amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(f) The Operating Partnership will comply with the
1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution
of the Underwritten Securities as contemplated in this
Agreement and the applicable Terms Agreement and in the
Registration Statement and the Prospectus. If at any time
when the Prospectus is required by the 1933 Act or the 1934
Act to be delivered in connection with sales of the
Underwritten Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Underwriters or for the
Operating Partnership, to amend or supplement the Prospectus
in order that the Prospectus will not include an untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in
light of the circumstances existing at the time it is
delivered to a purchaser not misleading, or if it shall be
necessary, in the reasonable opinion of either of such
counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act
Regulations, then the Operating Partnership will promptly
prepare and file with the Commission such amendment or
supplement in form and substance reasonably satisfactory to
counsel for the Underwriters, whether by filing documents
pursuant to the 1933 Act, the 1934 Act or otherwise, as may be
necessary to correct such statement or omission or to make the
Registration
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<PAGE> 20
Statement or the Prospectus comply with such requirements, and
the Operating Partnership will furnish to the Underwriters,
without charge, such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(g) The Operating Partnership will use its best
efforts, in cooperation with the Underwriters, to qualify the
Underwritten Securities for offering and sale under the
applicable securities laws and real estate syndication laws of
such states and other jurisdictions (domestic or foreign) as
you may designate and to maintain such qualifications in
effect; provided, however, that the Operating Partnership
shall not be obligated to file any general consent service of
process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to subject
itself to taxation in respect to doing business in any
jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Underwritten Securities have been so
qualified, the Operating Partnership will file such statements
and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for so
long as may be required for the distribution of the
Underwritten Securities.
(h) With respect to each sale of Underwritten
Securities, the Company and the Operating Partnership will
make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the
period covered thereby, an earning statement (in form
complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering a 12-month period beginning not later
than the first day of the Operating Partnership's fiscal
quarter next following the "effective date" (as defined in
such Rule 158) of the Registration Statement.
(i) The Operating Partnership will use the net
proceeds received by it from the sale of the Underwritten
Securities in the manner specified in the Prospectus under
"Use of Proceeds."
(j) The Operating Partnership will not, between
the date of the applicable Terms Agreement and the termination
of any trading restrictions or the applicable Closing Time,
whichever is later, with respect to the Underwritten
Securities covered thereby, without your prior written
consent, offer or sell, grant any option for the sale of, or
enter into any agreement to sell, any debt securities of the
same class or series or ranking on a parity with such
Underwritten Securities (other than the Underwritten
Securities which are to be sold pursuant to such Terms
Agreement).
(k) The Operating Partnership, during the period
when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, will file all documents required to be
filed with the Commission pursuant to Section 13, 14 or 15 of
the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations.
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<PAGE> 21
(l) The Company will continue to elect to qualify
as a "real estate investment trust" under the Code, and will
use its best efforts to meet the requirements to continue to
qualify as a "real estate investment trust" under the Code.
(m) Except for the authorization of actions
permitted to be taken by the Underwriters as contemplated
herein or in the Prospectus, neither the Company nor the
Operating Partnership will (i) take, directly or indirectly,
any action designed to cause or to result in, or that might
reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company or
the Operating Partnership to facilitate the sale or resale of
the Underwritten Securities, (ii) sell, bid for or purchase
the Underwritten Securities or pay any person any compensation
for soliciting purchases of the Underwritten Securities or
(iii) pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the
Company or the Operating Partnership.
(n) From the date hereof until five years after
the Closing Time, the Company and the Operating Partnership
shall furnish to you and your counsel, promptly upon their
becoming available, copies of any document filed with the
Commission pursuant to Section 13, 14 or 15 of the 1934 Act or
any securities exchange.
(o) In respect to each offering of Debt
Securities, the Company will qualify an Indenture under the
1939 Act.
(p) The Operating Partnership will take all
reasonable action necessary to enable Standard & Poor's
Corporation ("S&P"), Moody's Investors Service, Inc.
("Moody's") or any other nationally recognized statistical
rating organization to provide their respective credit ratings
of any Underwritten Securities, if applicable.
SECTION 4. Payment of Expenses. The Operating Partnership
will pay all expenses incident to the performance of its obligations under this
Agreement or the applicable Terms Agreement, including (i) the preparation,
printing and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment thereto,
(ii) the preparation and delivery to the Underwriters of this Agreement, any
Terms Agreement, any Agreement among Underwriters, the Indentures, and such
other documents as may be required in connection with the offering, purchase,
sale and delivery of the Underwritten Securities to the Underwriters, (iii) the
preparation, issuance and delivery of the Underwritten Securities, (iv) the
reasonable fees and disbursements of the Operating Partnership's counsel,
accountants and other advisors or agents (including transfer agents and
registrars), as well as the reasonable fees and disbursements of the Trustees,
and their respective counsel, (v) the qualification of the Underwritten
Securities under state securities laws and real estate syndication
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<PAGE> 22
laws in accordance with the provisions of Section 3(g) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation, and delivery of
the Blue Sky Memorandum and any amendment thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheet, and the Prospectus and any amendments or supplements thereto, (vii) any
fees charged by nationally recognized statistical rating organizations for the
rating of the Underwritten Securities, (viii) the fees and expenses incurred
with respect to the listing of the Underwritten Securities on any national
exchange, (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review, if
any, by the National Association of Securities Dealers, Inc. (the "NASD") of
the terms of the sale of the Underwritten Securities and any related Underlying
Securities, (x) the fees and expenses of any Underwriter acting in the capacity
of a "qualified independent underwriter" (as defined in Section 2710(c)(8) of
the Conduct Rules of the NASD), if applicable, (xi) the fees and expenses of
the Trustee, including the reasonable fees and disbursements of counsel for the
Trustee, in connection with the Indenture and the Underwritten Securities, and
(xii) the preparation, issuance and delivery to the Depository Trust Company
for credit to the accounts of the respective Underwriters of any global note
registered in the name of Cede & Co., as nominee for the Depository Trust
Company.
If the applicable Terms Agreement is terminated by you in
accordance with the provisions of Section 5 or Section 9(b)(i) hereof, the
Operating Partnership shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
several obligations of the Underwriters to purchase and pay for the
Underwritten Securities pursuant to the applicable Terms Agreement are subject
to the accuracy as of the date hereof and of Closing Time of the
representations and warranties of the Operating Partnership contained herein,
to the accuracy of the statements of officers of the Company, the Operating
Partnership or any Subsidiary made in any certificate delivered pursuant to the
provisions hereof, to the performance by the Operating Partnership of all of
its covenants and other obligations hereunder, and to the following further
conditions:
(a) (i) The Registration Statement, including
any Rule 462(b) Registration Statement, shall have become effective
under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act
or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information
shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters; (ii) a prospectus containing information
relating to the description of the Underwritten Securities, the
specific method of distribution and similar matters shall have been
filed within the prescribed time period, and prior to the applicable
Closing Time with the Commission in accordance with Rule 424(b) (or
any required post-effective amendment providing such information shall
have been filed and declared effective in accordance with the
requirements of Rule 430A), or, if the Operating Partnership has
elected to rely
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<PAGE> 23
upon Rule 434 of the 1933 Act Regulations, a Term Sheet including the
Rule 434 information shall have been filed with the Commission in
accordance with Rule 424(b)(7); (iii) the rating assigned by any
nationally recognized statistical rating organization to Debt
Securities of the Operating Partnership as of the date of the
applicable Terms Agreement shall not have been lowered since such date
nor shall any such rating organization have publicly announced that it
has placed any Debt Securities of the Operating Partnership on what is
commonly termed a "watch list" for possible downgrading; and (iv)
there shall not have come to your attention any facts that would cause
you to believe that the Prospectus, together with the applicable
Prospectus Supplement, at the time it was required to be delivered to
purchasers of the Underwritten Securities, included an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances existing at such time, not misleading.
(b) At Closing Time, the Representatives shall
have received the opinion, dated as of the applicable Closing Time, of
King & Spalding, counsel for the Company, the Operating Partnership
and the Subsidiaries, in form and substance satisfactory to counsel
for the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters, to the effect that:
(i) The Operating Partnership has been
duly formed and is validly existing as a limited partnership
under the Georgia Act. The Operating Partnership has
partnership power and authority to own, lease and operate its
properties and to conduct the business in which it is engaged,
and, to counsel's knowledge, is duly qualified as a foreign
partnership in the jurisdictions set forth in an exhibit to
the opinion. All of the issued and outstanding interests in
the Operating Partnership have been duly authorized and
validly issued and fully paid.
(ii) Each of Post Services, Inc., Post
Asset Management, Inc., Post Landscape Services, Inc. and RAM
Partners, Inc. (the "Significant Subsidiaries") has been duly
formed and is validly existing and in good standing under the
laws of the jurisdiction of its formation. Each of the
Significant Subsidiaries has the power and authority to own,
lease and operate its properties and to conduct the business
in which it is engaged, and, to counsel's knowledge, is duly
qualified as a foreign corporation or partnership and is in
good standing in the jurisdictions set forth in an exhibit to
the opinion. All of the issued and outstanding shares of
capital stock, LLC interests and partnership interests of each
Significant Subsidiary have been duly authorized and validly
issued, are fully paid and are owned, to such counsel's
knowledge, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity, other than the
transfer restrictions set forth in the Option and Transfer
Agreement by and among the Operating Partnership, Post
Services, Inc., John A. Williams and John T. Glover. The
ownership of the shares of capital stock of Post Services,
Inc. is as described in the Prospectus. All of the issued and
outstanding shares of capital
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<PAGE> 24
stock of each of the other Significant Subsidiaries are owned
by Post Services, Inc.
(iii) The Indenture has been duly
qualified under the 1939 Act and has been duly authorized,
executed and delivered by the Operating Partnership and
(assuming due authorization, execution and delivery by the
Trustee) constitutes the valid and binding obligation of the
Operating Partnership enforceable against the Operating
Partnership in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer, or similar laws affecting creditors'
rights generally from time to time in effect and general
principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity) and except that a waiver of rights under any usury law
may be unenforceable.
(iv) The Underwritten Securities have
been duly and validly authorized by all necessary action and,
when executed, authenticated and delivered in accordance with
the Indenture and against payment therefor as specified in the
applicable Terms Agreement or the Delayed Delivery Contracts,
if any, will be entitled to the benefits of the Indenture and
will be valid and legally binding obligations of the Operating
Partnership enforceable against the Operating Partnership in
accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer,
or similar laws affecting creditors' rights generally from
time to time in effect and general principles of equity
(regardless of whether such enforceability is considered in a
proceeding at law or in equity) and except that a waiver of
rights under any usury law may be unenforceable.
(v) Each of this Agreement, the
applicable Terms Agreement and the Delayed Delivery Contracts,
if any, has been duly and validly authorized, executed and
delivered by the Operating Partnership, and the Operating
Partnership has the power and authority to perform its
obligations hereunder and thereunder.
(vi) The execution and delivery of this
Agreement and the applicable Terms Agreement by the Operating
Partnership, and the performance by the Operating Partnership
of its obligations hereunder and thereunder and the
consummation of the transactions contemplated hereunder and
thereunder, did not, do not and will not conflict with or
constitute a breach or violation of, or default under: (1) to
the knowledge of counsel, any material contract, indenture,
mortgage, loan agreement, note, lease, joint venture or
partnership agreement or other material instrument or
agreement to which the Operating Partnership is a party or by
which it or any of its respective properties or other assets
or any Property may be bound or subject; (2) the certificate
of limited partnership or partnership agreement of the
Operating Partnership; or (3) any applicable law, rule, order,
administrative regulation or administrative or court decree,
except that
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<PAGE> 25
no opinion is expressed under this clause (3) as to this
Agreement or the Terms Agreement with respect to federal,
state or foreign securities laws.
(vii) The Registration Statement is
effective under the 1933 Act and, to counsel's knowledge based
solely upon telephonic confirmation from the staff of the
Commission, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and
no proceedings for that purpose have been initiated or
threatened by the Commission.
(viii) The Underwritten Securities and the
Indenture conform in all material respects to the descriptions
thereof contained in the Prospectus.
(ix) No consent, approval, authorization
or order of, or qualification with, any governmental body or
agency and no consent, approval, or authorization of any
person other than the Operating Partnership is required for
the performance by the Operating Partnership of its
obligations under this Agreement, the applicable Terms
Agreement, the Indenture or the Underwritten Securities,
except such as may be required under the 1933 Act, the 1939
Act, and the securities, Blue Sky or real estate syndication
laws of various states in connection with the offer and sale
of the Underwritten Securities.
(x) To the knowledge of counsel, there
is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending
or threatened against or affecting the Company, the Operating
Partnership, any Subsidiary or any material property of the
Company that is required to be disclosed in the Registration
Statement (other than as disclosed therein) or that, if
determined adversely to the Company, the Operating
Partnership, any Subsidiary or any property, could reasonably
be expected to materially and adversely affect the
consummation of the transactions contemplated by this
Agreement. To the knowledge of counsel, there are no
contracts or documents of the Operating Partnership or any
Subsidiary which are required by the 1933 Act, or by the 1933
Act Regulations, the 1934 Act, or the 1934 Act Regulations to
be filed as exhibits to the Registration Statement, the
Prospectus or the documents incorporated by reference which
have not been so filed as exhibits as required.
(xi) None of the Company, the Operating
Partnership or any Subsidiary is required to be registered as
an investment company under the 1940 Act.
(xii) The information (A) in the
Prospectus and the applicable Prospectus Supplement under the
headings "Description of Debt Securities" and "Federal Income
Tax Considerations" and (B) in the Operating Partnership's
Form 10 under "Recent Sales of Unregistered Securities," to
the extent that it constitutes
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<PAGE> 26
matters of law or legal conclusions has been reviewed by such
counsel, is correct and presents fairly the information
required to be disclosed therein.
(xiii) At the time the Registration
Statement became effective and at the Representation Date, the
Registration Statement and Prospectus (except for financial
statements and schedules included therein or the Statement
Eligibility, as to which such counsel need not express any
opinion), excluding the documents incorporated by reference
therein, complied as to form in all material respects with the
requirements of the 1933 Act, the 1939 Act and the 1933 Act
Regulations.
(xiv) Each document heretofore filed
pursuant to the 1934 Act and incorporated or deemed to be
incorporated by reference in the Prospectus (except for
financial statements and schedules and other financial
information included or incorporated by reference therein, as
to which such counsel need not express any opinion) complied
as to form in all material respects with the requirements of
the 1934 Act and the applicable 1934 Act Regulations in effect
at the date of their respective filings.
(xv) The Company was organized and has
operated in conformity with the requirements for qualification
and taxation as a REIT for its taxable years ending December
31, 1993, 1994 and 1995, and its current organization and
method of operation should enable it to continue to meet the
requirements for qualification and taxation as a REIT.
(xvi) The Operating Partnership and each
of the Subsidiary Partnerships are properly classified as
partnerships, and not as corporations or as associations
taxable as corporations, for Federal income tax purposes
throughout the period from July 22, 1993 through the date
hereof, or, in the case of any Subsidiary Partnerships that
have terminated, through the date of termination of such
Subsidiary Partnerships.
(c) At Closing Time, you shall have received the
favorable opinion, dated as of the applicable Closing Time, of Hogan &
Hartson L.L.P., counsel for the Underwriters, with respect to the
matters set forth in (i) (first sentence only), (iii), (iv), (v),
(vii), (viii), (xii) (solely with respect to information set forth in
"Description of Debt Securities"), and (xiii) of Section 5(b) above.
(d) In rendering their opinions required by
Sections 5(b) and (c), respectively, King & Spalding and Hogan &
Hartson L.L.P. shall each additionally state (which shall not
constitute an opinion) that no facts have come to the attention of
such counsel which cause them to believe that the Registration
Statement or any amendment thereto (except for financial statements
and supporting schedules and other financial information and data
included therein or omitted therefrom, or the Statement of
Eligibility, as to which such counsel need not express any view), as
of the time it became effective under the 1933 Act (and as of the time
of filing of the Operating Partnership's Annual Report on Form 10-K, if
filed subsequent to the time of effectiveness), or at the date of the
applicable Terms Agreement, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus or any amendment or supplement
thereto
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<PAGE> 27
(except as aforesaid) as of the date of the applicable Terms Agreement
or at the applicable Closing Time, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading.
In giving their opinions required by Section 5(b) and 5(c),
such counsel (A) may rely as to all matters of fact, upon certificates
and written statements of officers and employees of and accountants
for the Operating Partnership and (B) may rely as to the qualification
and good standing of each of the Operating Partnership or any of the
Subsidiaries to do business in any state or jurisdiction, upon
certificates of appropriate government officials or opinions of
counsel in such jurisdictions, which opinions shall be in form and
substance satisfactory to counsel for the Underwriters. In giving
their belief required in this Section 5(d), such counsel may state
that their belief is based upon their participation in the preparation
of the Registration Statement and Prospectus and any amendments and
supplements thereto and review and discussion of the contents thereof.
(e) At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the
respective dates as of which information is given in the Prospectus,
any Material Adverse Effect, whether or not arising in the ordinary
course of business, and you shall have received a certificate of the
President or a Vice President of the Company and the Operating
Partnership, and the chief financial officer or chief accounting
officer of the Company and the Operating Partnership, dated as of the
Closing Time, to the effect that (i) there has been no such Material
Adverse Effect, (ii) the representations and warranties in Section 1
are true and correct with the same force and effect as though
expressly made at and as of the Closing Time, (iii) the Operating
Partnership has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Closing Time, and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(f) At the time of the execution of the
applicable Terms Agreement, you shall have received from Price
Waterhouse LLP a letter dated such date, in form and substance
satisfactory to you together with signed or reproduced copies of such
letter for each of the other Underwriters, to the effect that: (i)
they are independent accountants with respect to the Company, the
Operating Partnership and their Subsidiaries within the meaning of the
1933 Act and the 1933 Act Regulations; (ii) it is their opinion that
the consolidated financial statements and supporting schedules
included or incorporated by reference in the Registration Statement
and the Prospectus and covered by their opinions therein comply in
form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations; (iii) based
upon limited procedures set forth in detail in such letter (which
shall include, without limitation, the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71, Interim
Financial Information, with respect to the unaudited financial
statements of the Company and the
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<PAGE> 28
Operating Partnership included or incorporated by reference in the
Registration Statement), nothing has come to their attention which
causes them to believe that, (A) any material modifications should be
made to the unaudited condensed financial statements included or
incorporated by reference in the Registration Statement for them to be
in conformity with GAAP or (B) the unaudited condensed financial
statements included or incorporated by reference in the Registration
Statement do not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act as it applies to
Form 10-Q and the related published rules and regulations or (C) at a
specified date not more than five days prior to the date of the
applicable Terms Agreement, there has been any change in the Common
Stock of the Company or partnership interests in the Operating
Partnership or in the consolidated long term debt of the Company and
the Operating Partnership or any decrease in the net assets of the
Company, as compared with the amounts shown in the most recent
consolidated balance sheet included or incorporated by reference in
the Registration Statement and the Prospectus or, during the period
from the date of the most recent consolidated statement of operations
included or incorporated by reference in the Registration Statement
and the Prospectus to a specified date not more than five days prior
to the date of the applicable Terms Agreement, there were any
decreases, as compared with the corresponding period in the preceding
year, in consolidated revenues, or decrease in net income or net
income per share of common stock of the Company and the Operating
Partnership, as applicable, except in all instances for changes,
increases or decreases which the Registration Statement and the
Prospectus disclose have occurred or may occur; and (iv) in addition
to the audit referred to in their opinions and the limited procedures
referred to in clause (iii) above, they have carried out certain
specified procedures with respect to certain amounts, percentages and
financial and statistical information which are included in the
Registration Statement and the Prospectus and which are specified by
you, and have found such amounts, percentages and financial and
statistical information to be in agreement with relevant accounting,
financial and other records of the Company and the Operating
Partnership and their Subsidiaries identified in such letter.
(g) At Closing Time, you shall have received from
Price Waterhouse LLP a letter, dated as of the applicable Closing
Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (f) of this Section 5, except
that the specified date referred to shall be a date not more than
three business days prior to the applicable Closing Time and if the
Operating Partnership has elected to rely on Rule 430A of the 1933 Act
Regulations, to the further effect that they have carried out the
procedures specified in clause (iv) of subsection (f) of this section
with respect to certain amounts, percentages and financial and
statistical information specified by you and deemed to be part of the
Registration Statement pursuant to Rule 430A(b) and have found such
amounts, percentages and financial and statistical information to be
in agreement with the records specified in such clause (iv).
(h) At Closing Time and at any relevant Date of
Delivery, the Underwritten Securities shall be rated investment grade
by any "nationally recognized statistical rating organization," as
defined by the Commission for purposes of Rule
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<PAGE> 29
436(g)(2) of the 1933 Act Regulations, if and as specified in the
Applicable Terms Agreement, and the Operating Partnership shall have
delivered to you a letter, dated as of such date, from each such
rating organization, or other evidence satisfactory to you, confirming
that the Underwritten Securities have such ratings. Since the time of
execution of such Terms Agreement, there shall not have occurred a
downgrading in the rating assigned to the Underwritten Securities or
any of the Company's or the Operating Partnership's other securities
by any such rating organization, and no such rating organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of the Underwritten
Securities or any of the Company's or the Operating Partnership's
other securities.
(i) If the Registration Statement or an offering
of Underwritten Securities has been filed with the NASD for review,
the NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and
arrangements.
(j) In the event that the Underwriters are
granted an over-allotment option by the Operating Partnership in the
applicable Terms Agreement and the Underwriters exercise their option
to purchase all or any portion of the Option Underwritten Securities,
the representations and warranties of the Operating Partnership
contained herein and the statements in any certificates furnished by
the Company or the Operating Partnership hereunder shall be true and
correct as of each Date of Delivery, and, at the relevant Date of
Delivery, you shall have received:
(1) A certificate, dated such Date of Delivery,
of the President or a Vice President of the Company and the
Operating Partnership and the chief financial officer or chief
accounting officer of the Company and the Operating
Partnership, confirming that the certificate delivered at the
Closing Time pursuant to Section 5(d) hereof remains true and
correct as of such Date of Delivery,
(2) The favorable opinion of King & Spalding,
counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery
relating to the Option Underwritten Securities and otherwise
to the same effect as the opinion required by Section 5(b)
hereof (including the statement of belief required by Section
5(d) hereof).
(3) The favorable opinion of Hogan & Hartson LLP,
counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Underwritten Securities and otherwise
to the same effect as the opinion required by Section 5(c)
hereof (including the statement of belief required by Section
5(d) hereof).
(4) A letter from Price Waterhouse LLP, in form
and substance satisfactory to you and dated such Date of
Delivery, substantially in the same form and substance as the
letter furnished to you pursuant to Section 5(f) here of,
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<PAGE> 30
except that the "specified date" on the letter furnished
pursuant to this paragraph shall be a date not more than three
business days prior to such Date of Delivery.
(k) At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Underwritten Securities
as herein contemplated, or in order to evidence the accuracy of any of
the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the
Operating Partnership in connection with the issuance and sale of the
Underwritten Securities as herein contemplated shall be satisfactory
in form and substance to you and counsel for the Underwriters.
(l) If any condition specified in this Section 5
shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement (or, with respect to the Underwriters'
exercise of any applicable over-allotment option for the purchase of
Option Underwritten Securities on a Date of Delivery after the Closing
Time, the obligations of the Underwriters to purchase the Option
Underwritten Securities on such Date of Delivery) may be terminated by
you by notice to the Operating Partnership at any time at or prior to
the Closing Time (or such Date of Delivery, as applicable), and such
termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 4, 6 and 7
shall survive any such termination and remain in full force and
effect.
SECTION 6. Indemnification.
(a) Each of the Company and the Operating Partnership agrees,
jointly and severally, to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, and any director, officer,
employee or affiliate thereof, as follows:
(1) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, arising out
of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any
amendment thereto), including the Rule 430A information and
the Rule 434 information deemed to be a part thereof, if
applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material
fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(2) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in
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<PAGE> 31
settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 6(d)
below) any such settlement is effected with the written
consent of the Operating Partnership; and
(3) against any and all expense
whatsoever, as incurred (including, without limitation, the
fees and other charges of counsel chosen by the Underwriters),
reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (1) or (2)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Operating
Partnership by any Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
information and the Rule 434 information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Operating Partnership, its directors, officers, employees and
affiliates and each person, if any, who controls the Operating Partnership
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A information and the Rule 434 information deemed to be a
part thereof, if applicable, or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Operating Partnership by such
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly
as reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which
it may have otherwise than on account of this indemnity agreement. In the case
of parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by Merrill Lynch, and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Operating Partnership. An indemnifying party
may participate at its own expense in the defense of any such action; provided,
however, that counsel
- 31 -
<PAGE> 32
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 6(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for
in Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified part in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Operating Partnership on the one hand, and the Underwriters, on the other hand,
from the offering of the Underwritten Securities pursuant to the applicable
Terms Agreement or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Operating Partnership, on the one hand, and of the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as
well as any other relevant equitable considerations.
The relative benefits received by the Operating Partnership,
on the one hand, and the Underwriters, on the other hand, in connection with
the offering of the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of such Underwritten Securities (before
deducting expenses) received by the Operating Partnership, and the total
underwriting discount received by the Underwriters, in each case as set forth
on the cover of the Prospectus,
- 32 -
<PAGE> 33
or, if Rule 434 is used, the corresponding location on the Term Sheet bear to
the aggregate initial public offering price of such Underwritten Securities as
set forth on such cover.
The relative fault of the Operating Partnership, on the one
hand, and the Underwriters, on the other hands shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Operating Partnership or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Operating Partnership and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Underwritten Securities underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Operating Partnership
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Operating Partnership. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the aggregate principal amount of Initial
Underwritten Securities set forth opposite their respective names in applicable
Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement or the applicable Terms Agreement or in certificates of officers
of the Company or the Operating Partnership submitted pursuant hereto or
thereto shall remain operative and in full force and effect, regardless of any
termination of this Agreement or the applicable Terms Agreement or
investigation made by or on behalf of any Underwriter or controlling person, or
- 33 -
<PAGE> 34
by or on behalf of the Company and the Operating Partnership, and shall survive
delivery of and payment for the Underwritten Securities.
SECTION 9. Termination of Agreement
(a) This Agreement (excluding the applicable Terms
Agreement) may be terminated for any reason at any time by the Operating
Partnership or by you upon the giving of 30 days' prior written notice of such
termination to the other party hereto.
(b) You may terminate the applicable Terms Agreement, by
notice to the Operating Partnership, at any time at or prior to the applicable
Closing Time or any relevant Date of Delivery, if (i) there has been, since the
time of execution of such Terms Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs,
assets or business prospects of the Company, the Operating Partnership and
their subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material adverse
change in the financial markets in the United States or, if the Underwritten
Securities are denominated or payable in, or indexed to, one or more foreign or
composite currencies, in the international financial markets, or any outbreak
of hostilities or escalation thereof or other calamity or crisis or any change
or development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which
is such as to make it, in your judgment, impracticable to market the
Underwritten Securities or to enforce contracts for the sale of the
Underwritten Securities, or (iii) trading in any securities of the Company has
been suspended or limited by the Commission or the New York Stock Exchange,
Inc. or if trading generally on the New York Stock Exchange, Inc. or the
American Stock Exchange, Inc. has been suspended or limited, or, minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by either of said exchanges or by order of the Commission, or
any other governmental authority, (iv) a banking moratorium has been declared
by either Federal or New York authorities or, if the Underwritten Securities
are denominated or payable in, or indexed to, one or more foreign or composite
currencies, by the relevant authorities in the related foreign country or
countries or (v) if the rating assigned by any nationally recognized
statistical rating organization to any Debt Securities of the Operating
Partnership as of the date of the applicable Terms Agreement shall have been
lowered since such date or if any such rating organization shall have publicly
announced that it has placed any Preferred Stock of the Company or Debt
Securities of the Operating Partnership on what is commonly termed a "watch
list" for possible downgrading. As used in this Section 9(b), the term
"Prospectus" means the Prospectus in the form first used to confirm sales of
the Underwritten Securities.
(c) If this Agreement or the applicable Terms Agreement
is terminated pursuant to this Section 9, such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof, and provided further that Sections 4, 6 and 7 shall survive such
termination and remain in full force and effect.
- 34 -
<PAGE> 35
SECTION 10. Default by One or More of the Underwriters. If
one or more of the Underwriters shall fail at the applicable Closing Time or
the relevant Date of Delivery, as the case may be, to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable
Terms Agreement (the "Defaulted Securities"), then you shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth; if, however, you shall not have
completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the aggregate principal
amount of Underwritten Securities to be purchased on such date
pursuant to such Terms Agreement, the non-defaulting
Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their
respective underwriting obligations under such Terms bear to
the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the aggregate principal amount of Defaulted
Securities exceeds 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, such
Terms Agreement (or, with respect to the Underwriters'
exercise of any applicable over-allotment option for the
purchase of Option Underwritten Securities on a Date of
Delivery after the Closing Time, the obligations of the
Underwriters to purchase, and the Company to sell, such Option
Underwritten Securities on such Date of Delivery) shall
terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i)
a termination of applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either you or the Operating Partnership shall
have the right to postpone the applicable Closing Time or the relevant Date of
Delivery, as the case may be, for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the Prospectus or
in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the Underwriters shall be directed to Merrill Lynch at Merrill Lynch World
Headquarters, World Financial Center, North Tower, New York, New York 10281-
1201, attention of Tjarda van S. Clagett and notices to the Company and the
Operating Partnership shall be directed to it at 3350 Cumberland Circle, N.W.,
Suite 2200, Atlanta, Georgia 30339, attention of John T. Glover, President.
- 35 -
<PAGE> 36
SECTION 12. Parties. This Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the Operating
Partnership, you and, upon execution of such Terms Agreement, any other
Underwriters and their respective successors. Nothing expressed or mentioned
in this Agreement or such Terms Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Operating Partnership and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or such Terms Agreement or any provision
herein or therein contained. This Agreement and such Terms Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole
and exclusive benefit of the parties hereto and thereto and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm
or corporation. No purchaser of Underwritten Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING
AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY
REFER TO NEW YORK CITY TIME.
SECTION 14. Counterparts.
This Agreement and the applicable Terms Agreement may be
executed in one or more counterparts, and if executed in more than one
counterpart the executed counterparts shall contribute a single instrument.
SECTION 15. Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the construction
hereof.
- 36 -
<PAGE> 37
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Operating Partnership a
counterpart hereof, whereupon this Agreement, along with all counterparts, will
become a binding agreement between you and the Operating Partnership in
accordance with its terms.
Very truly yours,
POST APARTMENT HOMES, L.P.
By: POST PROPERTIES, INC., its
general partner
By: /s/ John T. Glover
----------------------------
Name: John T. Glover
Title: President
CONFIRMED AND ACCEPTED
as of the date first
above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ John P. Case
------------------------
Name: John P. Case
Title: Vice President
- 37 -
<PAGE> 38
Exhibit A
POST APARTMENT HOMES, L.P.
a Georgia limited partnership
Debt Securities
TERMS AGREEMENT
To: Post Apartment Homes, L.P.
3350 Cumberland Circle, N.W.
Suite 2200
Atlanta, GA 30339
Ladies and Gentlemen:
We understand that Post Apartment Homes, L.P., a Georgia limited
partnership (the "Operating Partnership"), proposes to issue and sell
[$________ aggregate principal amount of its [senior] [subordinated] debt
securities (the "Debt Securities")] [such securities also being hereinafter
referred to as the "Initial Underwritten Securities"). Subject to the terms
and conditions set forth or incorporated by reference herein, we [the
underwriters named below (the "Underwriters")] offer to purchase, severally and
not jointly, the principal amount of Underwritten Securities opposite their
names set forth below at the purchase price set forth below, and a
proportionate share of Option Underwritten Securities set forth below, to the
extent any are purchased].
Principal Amount
Underwriter of Initial Underwritten Securities
Total [$]
A-1
<PAGE> 39
[Debt Securities]
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share:
_____________% of the principal amount, plus accrued interest
[amortized original issue discount], if any, from __________.
Purchase price per share: _____% of principal amount, plus accrued interest
[amortized original issue discount], if any, from __________ (payable
in next day funds).
Form:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as
Annex I entitled "POST APARTMENT HOMES, L.P.--Debt Securities--Purchase
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
A-2
<PAGE> 40
EXHIBIT B
POST APARTMENT HOMES L.P.
(a Georgia limited partnership)
[Title of Securities]
DELAYED DELIVERY CONTRACT
_______________ __, 1996
Post Apartment Homes, L.P.
3350 Cumberland Circle, Suite 2200
Atlanta, Georgia 30339
Attention:
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Post Apartment Homes, L.P.
(the "Operating Partnership"), and the Operating Partnership agrees to sell to
the undersigned on ______________ __, 19__ (the "Delivery Date"),
________________________ principal amount of the Operating Partnership's
[insert title of security] (the "Securities"), offered by the Operating
Partnership's Prospectus dated ________________ __, 19__, as supplemented by
its Prospectus Supplement dated ______________ __, 19__, receipt of which is
hereby acknowledged, at a purchase price of [__% of the principal amount
thereof, plus accrued interest from ____________ __, 19__,] to the Delivery
Date, and on further terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase on
the Delivery Date shall be made to the Operating Partnership or its order by
[certified or official bank check in New York Clearing House] [same day] funds
at the office of __________________________________________, on the Delivery
Date, upon delivery to the undersigned of the Securities to be purchased by the
undersigned in definitive form and in such denominations and registered in such
names as the undersigned may designate in written or telegraphic communication
addressed to the Operating Partnership not less than five full business days
prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
the Securities on the Delivery Date shall be subject only to the conditions
that (1) the purchase of the Securities to be made by the undersigned shall not
on the Delivery Date be prohibited under the laws of the jurisdiction to which
the undersigned is subject and (2) the Operating Partnership, on or before
_________________ __, 19__, shall have sold to the Underwriters of the
Securities (the "Underwriters") such principal amount of the Securities as is
sold to them pursuant to the
<PAGE> 41
Terms Agreement dated _______________ __, 19__ between the Operating
Partnership and the Underwriters. The obligation of the undersigned to take
delivery of and make payment for the Securities shall not be affected by the
failure of any purchaser to take delivery of and make payments for the
Securities pursuant to other contracts similar to this contract. The
undersigned represents and warrants to you that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which govern such
investment.
Promptly after completion of the sale to the Underwriters, the Operating
Partnership will mail or deliver to the undersigned at its address set forth
below notice to such effect, accompanied by a copy of the opinions of counsel
for the Operating Partnership delivered to the Underwriters in connection
therewith.
By the execution hereof, the undersigned represents and warrants to the
Operating Partnership that all necessary corporate action for the due execution
and delivery of this contract and the payment for and purchase of the
Securities has been taken by it and no further authorization or approval of any
governmental or other regulatory authority is required for such execution,
delivery, payment or purchase, and that, upon acceptance hereof by the
Operating Partnership and mailing or delivery of a copy as provided below, this
contract will constitute a valid and binding agreement of the undersigned in
accordance with its terms.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the Operating Partnership will not accept Delayed
Delivery Contracts for an aggregate principal amount of Securities in excess of
$________ and that the acceptance of any Delayed Delivery Contract is in the
Operating Partnership's sole discretion and, without limiting the foregoing,
need not be on a first-come, first-served basis. If this contract is
acceptable to the Operating Partnership, it is requested that the Operating
Partnership sign the form of acceptance on a copy hereof and mail or deliver a
signed copy hereof to the undersigned at its address set forth below. This
will become a binding contract between the Operating Partnership and the
undersigned when such copy is so mailed or delivered.
2
<PAGE> 42
This Delayed Delivery Contract shall be governed by the laws of the State
of New York.
Yours very truly,
-----------------------------------
(Name of Purchaser)
By:
--------------------------------
(Title)
-----------------------------------
-----------------------------------
(Address)
Accepted as of the date first above written.
POST APARTMENT HOMES, L.P.
By: Post Properties, Inc., General Partner
By:
--------------------------------
Name:
Title:
3
<PAGE> 43
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with
whom details of delivery on the Delivery Date may be discussed are as follows:
(Please print.)
Telephone No.
Name (including Area Code)
---- ---------------------
4
<PAGE> 44
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 a
INCORPORATED
By:
-----------------------------
Authorized Signatory
[Acting on behalf of itself and the other named
Underwriters.]
Accepted:
POST APARTMENT HOMES, L.P.
By: POST PROPERTIES, INC., its
general partner
By:
-----------------------------
Name:
Title:
A-3
<PAGE> 1
EXHIBIT 1(b)
POST PROPERTIES, INC.
(a Georgia corporation)
Common Stock, Preferred Stock and Depositary Shares
PURCHASE AGREEMENT
September 26, 1996
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
250 Vesey Street
New York, New York 10281-1209
Ladies and Gentlemen:
Post Properties, Inc., a Georgia corporation (the "Company"), proposes to
issue and sell up to $300,000,000 aggregate initial public offering price of
its (i) shares of common stock, par value $.01 per share (the "Common Stock"),
(ii) shares of preferred stock, par value $.01 per share (the "Preferred
Stock"), and (iii) shares of Preferred Stock represented by Depositary Shares
(the "Depositary Shares") in amounts, at prices and on terms to be determined
at the time of offering.
The Preferred Stock will be issued in one or more series and each series
of Preferred Stock may vary, as applicable, as to the title, specific number of
shares, rank, stated value, liquidation preference, dividend rate or rates (or
method of calculation), dividend payment dates, redemption provisions, sinking
fund requirements, conversion provisions (and terms of the related Underlying
Securities (as defined below)) and any other variable terms as set forth in the
applicable articles of amendment (each, the "Articles of Amendment") relating
to such series of Preferred Stock. A series of Preferred Stock may be
represented by Depositary Shares that are evidenced by depositary receipts (the
"Depositary Receipts") issued pursuant to a deposit agreement (each, a "Deposit
Agreement") among the Company, the depositary identified therein (the
"Depositary") and the registered holders of the Depositary Receipts issued
thereunder.
As used herein, "Securities" shall mean the Common Stock, Preferred Stock
or Depositary Shares, or any combination thereof, initially issuable by the
Company and "Underlying Securities" shall mean the Common Stock or Preferred
Stock issuable upon conversion of the Preferred Stock or Depositary Shares, as
applicable. Unless the context otherwise requires, as used herein, "you" and
"your" shall mean the parties to whom this Agreement is addressed together with
the other parties, if any, identified in the applicable Terms Agreement (as
hereinafter defined) as additional co-managers with respect to Underwritten
Securities (as hereinafter defined) purchased pursuant thereto.
Whenever the Company determines to make an offering of Securities through
you, or through an underwriting syndicate managed by you, the Company will
enter into an agreement (each a "Terms Agreement") providing for the sale of
such Securities (the "Underwritten Securities") to, and the purchase and
offering thereof by, you and such other underwriters, if any, selected by you
(the "Underwriters," which term shall include you, whether acting as sole
Underwriter or as a member of an underwriting syndicate, as well as any
Underwriter substituted pursuant to Section 10 hereof). The Terms Agreement
relating to the offering of Underwritten Securities shall specify the number of
Underwritten Securities to be initially issued (the "Initial Underwritten
Securities"), the name of each Underwriter participating in such offering
(subject to substitution as provided in Section 10 hereof) and the name of any
Underwriter other than you acting as co-manager in connection with such
offering, the number of Initial Underwritten Securities which each such
Underwriter severally agrees to purchase, whether such offering is on a fixed
or variable price basis and, if on a fixed price basis, the initial offering
price, the price at which the
<PAGE> 2
Initial Underwritten Securities are to be purchased by the Underwriters, the
form, time, date and place of delivery and payment and any delayed delivery
arrangements of the Initial Underwritten Securities and any other material
variable terms of the Initial Underwritten Securities (including, but not
limited to, current ratings, if applicable, designations, liquidation
preferences, conversion provisions, redemption provisions and sinking fund
requirements), as well as the material variable terms of any related Underlying
Securities. In addition, if applicable, such Terms Agreement shall specify
whether the Company has agreed to grant to the Underwriters an option to
purchase additional Securities to cover over-allotments, if any, and the number
of Underwritten Securities subject to such option (the "Option Underwritten
Securities"). As used herein, the term "Underwritten Securities" shall include
the Initial Underwritten Securities and all or any portion of any Option
Underwritten Securities. The Terms Agreement, which shall be substantially in
the form of Exhibit A hereto, may take the form of an exchange of any standard
form of written telecommunication between you and the Company. Each offering
of Underwritten Securities through you as sole Underwriter or through an
underwriting syndicate managed by you will be governed by this Agreement, as
supplemented by the applicable Terms Agreement and such Terms Agreement shall
inure to the benefit of and be binding upon each Underwriter participating in
the offering of such Underwritten Securities.
The Company and Post Apartment Homes, L.P., a Georgia limited partnership
(the "Operating Partnership") have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-3555) for the registration of, among other securities, the Securities under
the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 430A or Rule 415 of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), and the Company and the Operating Partnership have filed such
amendments thereto as may have been required prior to the execution of the
applicable Terms Agreement. Such registration statement (as amended, if
applicable) has been declared effective by the Commission. Such registration
statement and the prospectus constituting a part thereof (including in each
case the information, if any, deemed to be part thereof pursuant to Rule
430A(b) of the 1933 Act Regulations, and each prospectus supplement relating to
the offering of Underwritten Securities pursuant to Rule 430A or Rule 415 of
the 1933 Act Regulations (the "Prospectus Supplement")), including all
documents incorporated therein by reference, as from time to time amended or
supplemented pursuant to the 1933 Act, the Securities Exchange Act of 1934, as
amended (the "1934 Act") or otherwise, are collectively referred to herein as
the "Registration Statement" and the "Prospectus," respectively; provided, that
if any revised Prospectus shall be provided to you by the Company for use in
connection with the offering of Underwritten Securities which differs from the
Prospectus on file at the Commission at the time the Registration Statement
became effective (whether or not such revised prospectus is required to be
filed by the Company pursuant to Rule 424(b) of the 1933 Act Regulations), the
term "Prospectus" shall refer to each such revised prospectus from and after
the time it is first provided to you for such use; provided, further, that a
Prospectus Supplement shall be deemed to have supplemented the Prospectus only
with respect to the offering of Underwritten Securities to which it relates.
Any registration statement (including any supplement thereto or information
which is deemed part thereof) filed by the Company under Rule 462(b) of the
1933 Act Regulations (a "Rule 462(b) Registration Statement") shall be deemed
to be part of the Registration Statement. Any prospectus (including any
amendment or supplement thereto or information which is deemed part thereof)
included in the Rule 462(b) Registration Statement and any term sheet as
contemplated by Rule 434 of the 1933 Act Regulations (a "Term Sheet") shall be
deemed to be part of the Prospectus. All references in this Agreement to
financial statements and schedules and other information which is "contained,"
"included" or "stated" in the Registration Statement or the Prospectus (and all
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed
to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus shall
be deemed to mean and include the filing of any document under the 1934 Act
which is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, preliminary prospectus supplement, Prospectus or Prospectus
Supplement or any Term Sheet or any amendment or supplement to the foregoing
shall be deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
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<PAGE> 3
The term "Subsidiary" as used herein means a corporation or a partnership
a majority of the outstanding equity interests of which is owned or controlled,
directly or indirectly, by the Company or the Operating Partnerships, as the
case may be, or by one or more other Subsidiaries of the Company or the
Operating Partnership.
SECTION 1. Representations and Warranties of the Company and the
Operating Partnership.
(a) The Company and the Operating Partnership, jointly and severally,
represent and warrant to you, as of the date hereof, and to you and each other
Underwriter named in the applicable Terms Agreement, as of the date thereof,
as of the Closing Time (as defined below) and, if applicable, as of each Date
of Delivery (as defined below) (in each case, a "Representation Date"), as
follows:
(1) The Company and the Operating Partnership meet the
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement, the Prospectus and any Rule 462(b)
Registration Statement has become effective under the 1933 Act and
no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued under the 1933 Act
and no proceeding for that purpose has been instituted or is
pending or, to the knowledge of the Company, is contemplated or
threatened by the Commission or by the state securities authority
of any jurisdiction, and any request on the part of the Commission
for additional information has been complied with. No order
preventing or suspending the use of the Prospectus has been issued
and no proceeding for that purpose has been instituted or, to the
knowledge of the Company or the Operating Partnership, threatened
by the Commission or by the state securities authority of any
jurisdiction.
(2) The Registration Statement, at the time it became
effective, complied, and the Registration Statement and the
Prospectus at each Representation Date will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations. The Registration Statement, at the time the
Registration Statement became effective, did not, and as of each
Representation Date, will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. At the date of the Prospectus, at the Closing Time and
at each Representation Date, the Prospectus and any amendments and
supplements thereto (unless the term "Prospectus" refers to a
prospectus which has been provided to you by the Company for use in
connection with an offering of Underwritten Securities which
differs from the Prospectus on file at the Commission at the time
the Registration Statement became effective, in which case at the
time it is first provided to you for such use) did not and will not
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading. If the Company elects to rely upon Rule 434 of the
1933 Act Regulations, the Company will comply with the requirements
of Rule 434. Notwithstanding the foregoing, the representations
and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement or the Prospectus made
in reliance upon and in conformity with information furnished to
the Company in writing by any Underwriter through you expressly for
use in the Registration Statement or the Prospectus. If a Rule
462(b) Registration Statement is required in connection with the
offering and sale of the Underwritten Securities, the Company has
complied or will comply with the requirements of Rule 111 of the
1933 Act Regulations relating to the payment of filing fees
therefor.
(3) Each preliminary prospectus, preliminary prospectus
supplement and Prospectus Supplement filed as part of the
Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933
Act, complied, when so filed, in all material respects with the
1933 Act Regulations and, if applicable, each preliminary
prospectus and the Prospectus delivered to the Underwriters for use
in connection with the offering of Underwritten Securities will, at
the time of such delivery, be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
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(4) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in
the Prospectus, at the time the Registration Statement became
effective and as of each Representation Date or during the period
specified in Section 3(f), did not and will not include an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading.
(5) Price Waterhouse LLP, the accounting firm that certified
the financial statements and supporting schedules included in, or
incorporated by reference into, the Registration Statement and the
Prospectus is an independent public accountant as required by the
1933 Act and the 1933 Act Regulations.
(6) The consolidated financial statements of the Company and
the Operating Partnership incorporated by reference into the
Registration Statement and the Prospectus, together with the
related schedules and notes, as well as those financial statements,
schedules and notes of any other entity included therein, present
fairly the financial position of the Company, the Operating
Partnership and their consolidated subsidiaries, or such other
entities, as the case may be, at the respective dates indicated and
the statement of operations, stockholders' equity, partners' equity
and cash flows of the Company, the Operating Partnership and their
consolidated subsidiaries, or such other entities, as the case may
be, for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in,
or incorporated by reference into, the Registration Statement and
the Prospectus present fairly the information required to be stated
therein. The selected financial data and the summary financial
information included in, or incorporated by reference into, the
Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited
financial statements included in, or incorporated by reference
into, the Registration Statement and the Prospectus. The Company's
and the Operating Partnership's ratios of earnings to fixed charges
(actual and, if any, pro forma) included in the Prospectus under
the captions "Ratios of Earnings to Fixed Charges" and in Exhibit
12.1 to the Registration Statement have been calculated in
compliance with Item 503(d) of Regulation S-K of the Commission.
In addition, any pro forma financial statements included in, or
incorporated by reference into, the Registration Statement and the
Prospectus comply in all material respects with the applicable
requirements of Rule 11-02 of Regulation S-X of the Commission, and
the assumptions used in the preparation thereof are, in the opinion
of the Company, reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances
referred to therein and have been properly applied to the
historical amounts in the compilation of such statements. Other
than the historical financial statements (and schedules) included
therein, no other historical or pro forma financial statements (or
schedules) are required by the 1933 Act or the 1933 Act Regulations
to be included in the Registration Statement.
(7) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the
earnings, assets, business affairs or business prospects of the
Company, the Operating Partnership and their Subsidiaries
considered as one enterprise (a "Material Adverse Effect"), whether
or not arising in the ordinary course of business; (B) no casualty
loss or condemnation or other adverse event with respect to any of
the interests held directly or indirectly in any of the real
properties owned, directly or indirectly, by the Company, the
Operating Partnership or their Subsidiaries (the "Properties") has
occurred that
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is material to the Company, the Operating Partnership and their
Subsidiaries considered as one enterprise; (C) there have been no
transactions entered into by the Company, the Operating Partnership
or any Subsidiary, other than those arising in the ordinary course
of business, which are material with respect to the Company, the
Operating Partnership and their Subsidiaries considered as one
enterprise or that would result, upon consummation, in any material
inaccuracy in the representations contained in Section 1(a)(6)
above; (D) neither the Company, the Operating Partnership nor any
Subsidiary has incurred any material obligation or liability,
direct, contingent or otherwise; and (E) there has been no material
change in the short-term debt or long-term debt of the Company or
the Operating Partnership.
(8) The Company has been duly organized and is validly
existing as a corporation in good standing under the Georgia
Business Corporation Code with corporate power and authority to
own, lease and operate its properties, to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under this Agreement, the applicable Terms Agreement,
any Deposit Agreement, the Delayed Delivery Contracts (as defined
herein), if any and the other agreements to which it is a party.
The Company is duly qualified or registered as a foreign
corporation to transact business and is in good standing in the
State of Florida, and the Commonwealth of Virginia and in each
other jurisdiction and each other jurisdiction in which such
qualification or registration is required, whether by reason of the
ownership, leasing or management of property or the conduct of
business except where the failure to so qualify or register would
not have a Material Adverse Effect.
(9) The Operating Partnership has been duly formed and is
validly existing as a limited partnership in good standing under
the Georgia Revised Uniform Limited Partnership Act (the "Georgia
Act") with partnership power and authority to own, lease and
operate its properties, to conduct the business in which it is
engaged and to enter into and perform its obligations under this
Agreement, the Terms Agreement and the other agreements to which it
is a party. The Operating Partnership is duly qualified or
registered as a foreign partnership and is in good standing in the
State of Florida and the Commonwealth of Virginia and in each
other jurisdiction in which such qualification or registration is
required, whether by reason of the ownership, leasing or
management of property or the conduct of business, except where
the failure to so qualify or register would not have a Material
Adverse Effect.
(10) Each of the Subsidiaries has been duly formed and is
validly existing and in good standing under the laws of its
jurisdiction of organization with partnership or corporate power
and authority to conduct the business in which it is engaged and to
own, lease and operate its properties as described in the
Prospectus. Each of the Subsidiaries is duly qualified as a
foreign partnership, corporation or other organization to transact
business and is in good standing in each jurisdiction in which such
qualification is required whether by reason of the ownership or
leasing of property, the management of properties by others or the
conduct of business except where the failure to so qualify or
register would not have a Material Adverse Effect.
(11) The capitalization of the Company is as set forth in the
Prospectus (except for subsequent issuances thereof, if any,
contemplated under this Agreement, pursuant to employee benefit
plans referred to in the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the Prospectus).
Such shares of capital stock have been duly authorized and validly
issued by the Company and are fully paid and non-assessable, and
none of such shares of capital stock were issued in violation of
preemptive or other similar rights arising by operation of law,
under the charter and by-laws of the Company or under any agreement
to which the Company, the Operating Partnership or any of their
subsidiaries is a party, or otherwise.
(12) The capitalization of the Operating Partnership is as set
forth in the Prospectus and all of the outstanding partnership
interests in the Operating Partnership have been duly authorized
and validly issued and the capital contributions with respect
thereto have been made in full; and
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the partnership interests owned by the Company are owned in the
percentage amount set forth in the Prospectus free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity. The Company is the sole general partner of the Operating
Partnership.
(13) All of the issued and outstanding shares of capital stock
and partnership interests, as the case may be, of each Subsidiary
have been validly issued and fully paid and are owned by the
Company, the Operating Partnership, another Subsidiary, and/or
certain affiliated entities as described in the Registration
Statement, in each case free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, other than
the transfer restrictions set forth in the Option and Transfer
Agreement by and among the Operating Partnership, Post Services,
Inc., John A. Williams and John T. Glover. The Operating
Partnership owns no direct or indirect equity interest in any
entity other than its Subsidiaries.
(14) Except for transactions described in the Prospectus and
transactions in connection with stock andOperating Partnership
interests (the "Unit") option and dividend reinvestment plans and
exchanges of Units, there are no outstanding securities convertible
into or exchangeable for any capital stock of the Company and no
outstanding options, rights (preemptive or otherwise) or warrants
to purchase or to subscribe for such shares, Units or other
securities of the Company, the Operating Partnership or any of
their subsidiaries.
(15) Each of the Company and the Operating Partnership has
full power and authority to enter into and perform its obligations
under this Agreement, the applicable Terms Agreement, the Deposit
Agreement, if applicable and the Delayed Delivery Contracts (as
defined in Section 2 hereof), if any and this Agreement has been,
and as of each Representation Date, the applicable Terms Agreement,
Deposit Agreement, if any, and the Delayed Delivery Contracts, if
any, will have been, duly authorized, executed and delivered by
each of the Company and the Operating Partnership and, assuming due
authorization and delivery by the other parties thereto, each is a
valid and binding agreement of the Company and the Operating
Partnership enforceable against the Company and the Operating
Partnership in accordance with its terms, except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors'
rights generally, (B) the availability of equitable remedies may be
limited by equitable principles of general applicability, and (C)
rights to indemnity and contribution thereunder may be limited by
state or federal securities laws or the public policy underlying
such laws.
(16) The Common Stock has been, or as of the date of the
applicable Terms Agreement will have been, duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement
and, when issued and delivered as provided herein and in the
applicable Terms Agreement, the Common Stock will be validly
issued, fully paid and non-assessable; the Preferred Stock has
been, or as of the date of the applicable Terms Agreement will have
been, duly authorized and classified and when Articles of Amendment
setting the terms of the Preferred Stock are duly executed and
filed for record with the Secretary of State of the State of
Georgia and the Preferred Stock is duly paid for, sold and issued,
and certificates therefor are duly executed, countersigned and
delivered as provided herein and in the applicable Terms Agreement
or any Delayed Delivery Contract, the Preferred Stock will be
validly issued, fully paid and non-assessable; when Depositary
Receipts evidencing any Depositary Shares are issued and delivered
against deposit of Preferred Stock and against payment for the
Depositary Shares pursuant to this Agreement, the Terms Agreement
relating to the Depositary Shares and the Deposit Agreement, the
Preferred Stock will be validly issued, fully paid and
non-assessable, and the Depositary Receipts will be legally issued
and will entitle the holders thereof to the rights specified in the
Depositary Receipts and the Deposit Agreement; the Preferred Stock,
if applicable, conforms to the Articles of Amendment; the
Underwritten Securities being sold pursuant to the applicable Terms
Agreement conform, in all material respects, to the descriptions
thereof contained in the Prospectus; and the issuance of the
Underwritten Securities is not subject to preemptive or similar
rights.
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(17) Before the Closing Time for any Depositary Shares, the
Deposit Agreement will be duly authorized and executed by the
Company, and assuming due authorization, execution and delivery by
the Depositary, the Deposit Agreement will constitute a valid and
legally binding instrument of the Company enforceable against the
Company in accordance with its terms, except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors'
rights generally, (B) the availability of equitable remedies may be
limited by equitable principles of general applicability, and (C)
rights to indemnity and contribution thereunder may be limited by
state or federal securities laws or the public policy underlying
such laws.
(18) If applicable, the Common Stock issuable upon conversion
of any of the Preferred Stock or the Depositary Shares have been,
or as of the date of such Terms Agreement will have been, duly and
validly authorized and reserved for issuance by the Company upon
such conversion by all necessary action and such shares, when
issued upon such conversion, will be duly and validly issued, fully
paid and non-assessable and the issuance of such shares upon such
conversion will not be subject to preemptive or other similar
rights arising by operation of law, under the charter and by-laws
of the Company or under any agreement to which the Company or any
of its subsidiaries is a party, or otherwise. The Common Stock
issuable upon conversion of any of the Preferred Stock or
Depositary Shares will conform in all material respects to the
descriptions thereof in the Prospectus.
(19) The Underwritten Securities being sold pursuant to the
applicable Terms Agreement and each applicable Deposit Agreement,
as of the date of the Prospectus, and any Underlying Securities,
when issued and delivered in accordance with the terms of the
related Underwritten Securities, will conform in all material
respects to the statements relating thereto contained in the
Prospectus and will be in substantially the form filed or
incorporated by reference, as the case may be, as an exhibit to the
Registration Statement.
(20) Neither the Company, the Operating Partnership nor any of
their Subsidiaries is in violation of its charter, by-laws,
certificate of limited partnership, partnership agreement or LLC
agreement, as the case may be, or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or other agreement or instrument
to which it or any of them is a party or by which any of them may
be bound, or to which any of their property or assets is subject,
except for such defaults that would not result in a Material
Adverse Effect. The execution, delivery and performance of this
Agreement or the applicable Terms Agreement or any Deposit
Agreement and the transactions contemplated herein or therein
including the issuance, sale and delivery of the Underwritten
Securities and the use of the proceeds from the sale of the
Underwritten Securities as described in the Prospectus under the
caption "Use of Proceeds," and compliance by the Company and the
Operating Partnership with its obligations hereunder and thereunder
(A) do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of the
Company, the Operating Partnership or any of their Subsidiaries
pursuant to, any material contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company, the Operating Partnership or any
of their Subsidiaries is a party or by which it or any of them may
be bound, or to which any of their properties or assets is subject,
nor (B) will such action result in any violation of the provisions
of the (i) charter, bylaws, LLC agreement or partnership agreement
of the Company, the Operating Partnership or any Subsidiary, as the
case may be, or (ii) any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
agency or court, domestic or foreign, having jurisdiction over the
Company, the Operating Partnership or any
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<PAGE> 8
Subsidiary or any of their assets, properties or operations. As
used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company, the Operating
Partnership or any Subsidiary.
(21) No labor dispute with the employees of the Company, the
Operating Partnership or any Subsidiary exists or, to the knowledge
of the Company and the Operating Partnership, is imminent, which
may result in a Material Adverse Effect.
(22) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now
pending, or to the knowledge of the Company or the Operating
Partnership threatened, against or affecting the Company, the
Operating Partnership, any Subsidiary thereof, any Property or any
officer or director of the foregoing, which is required to be
disclosed in the Registration Statement and the Prospectus (other
than as stated therein), or which might result in a Material
Adverse Effect, or which might materially and adversely affect the
consummation of this Agreement or the applicable Terms Agreement or
any Deposit Agreement or the Delayed Delivery Contracts or the
transactions contemplated herein or therein. There is no pending
legal or governmental proceedings to which the Company, the
Operating Partnership or any Subsidiary is a party or of which any
of their respective assets or properties is subject which might
result in a Material Adverse Effect.
(23) There are no contracts or documents of the Company or the
Operating Partnership which are required to be described in the
Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and/or filed as required.
(24) No authorization, approval or consent of any court or
governmental authority or agency is necessary or required for the
performance by the Company and the Operating Partnership of their
obligations under this Agreement or the applicable Terms Agreement
or in connection with the transactions contemplated under this
Agreement, such Terms Agreement or any Deposit Agreement, except
such as have been already obtained or as may be required under the
1933 Act, the 1933 Act Regulations or state securities or real
estate syndication laws.
(25) The Company, the Operating Partnership and their
Subsidiaries own or possess trademarks, service marks, trade names
or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them,
and neither the Company, the Operating Partnership nor any of their
Subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid
or inadequate to protect the interest of the Company, the Operating
Partnership or any of their Subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or
in the aggregate, would result in a Material Adverse Effect.
(26) Each of the Company, the Operating Partnership and their
subsidiaries has all permits, licenses, approvals, consents,
certificates and other authorizations of and from (collectively,
"Governmental Licenses") and has made all declarations and filings
with, all appropriate federal, state, local, foreign and other
governmental authorities, all self-regulatory organizations and all
courts and other tribunals required for it to own, lease, license
and use its properties and assets and to conduct its business in
the manner described in the Registration Statement and the
Prospectus, other than such Governmental Licenses the absence of
which, singly or in the aggregate, could result in a Material
Adverse Effect. Neither the Company, the Operating Partnership nor
any of their Subsidiaries has received any notice of proceedings
relating
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<PAGE> 9
to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse
Effect.
(27) (A) The Company and the Operating Partnership have good
and marketable fee simple title to the land underlying the
Properties (or, in the case of the Property known as "Post
Renaissance," a good and marketable leasehold interest in the land
underlying such Property) and good and marketable title to the
improvements thereon and all other assets that are required for the
effective operation of such Properties in the manner in which they
currently are operated, subject, however, to existing mortgages on
such Properties, to utility easements serving such Properties, to
liens of ad valorem taxes not due and payable as of the Closing
Time, to zoning and similar governmental land use matters affecting
such Properties that are consistent with the current uses of such
Properties, to matters of title not adversely affecting
marketability of title to such Properties, other statutory liens
not due and payable as of the Closing Time, title matters that may
be material in character, amount or extent but which do not
materially detract from the value, or interfere with the use of,
the Properties or otherwise materially impair the business
operations being conducted or proposed to be conducted thereon,
ownership of cable television lines and facilities serving one or
more of such Properties by the cable television providers or their
affiliates, service marks and trade names used in connection with
such Properties, and ownership by others of certain items of
equipment and other items of personal property that are not
material to the conduct of business operations at such Properties;
(B) the ground lease under which the Company and the Operating
Partnership lease the land on which the Property known as "Post
Renaissance" is located is in full force and effect, and the
Company and the Operating Partnership are not in default in respect
of any of the terms or provisions of such lease and the Company and
the Operating Partnership have not received notice of the assertion
of any claim by anyone adverse to the Company's or the Operating
Partnership's rights as lessee under such lease, or affecting or
questioning the Company's or the Operating Partnership's right to
the continued possession or use of the Property under such lease or
of a default under such lease, other than claims which would not
have a Material Adverse Effect; (C) all liens, charges,
encumbrances, claims, or restrictions on or affecting any of the
Properties and the assets of the Company and the Operating
Partnership or any Subsidiary which are required to be disclosed in
the Prospectus are disclosed therein; (D) none of the Company and
the Operating Partnership or any tenant of any of the Properties is
in default under any of the leases pursuant to which the Company
and the Operating Partnership, as lessor, leases its Property (and
the Company and the Operating Partnership do not know of any event
which, but for the passage of time or the giving of notice, or
both, would constitute a default under any of such leases) other
than such defaults that would not have a Material Adverse Effect;
(E) no person has an option or right of first refusal to purchase
all or part of any Property or any interest therein; (F) each of
the Properties complies with all applicable codes, laws and
regulations (including, without limitation, building and zoning
codes, laws and regulations and laws relating to access to the
Properties), except to the extent disclosed in the Prospectus and
except for such failures to comply that would not individually or
in the aggregate have a Material Adverse Effect; (G) the Company
and the Operating Partnership do not have knowledge of any pending
or threatened condemnation proceedings, zoning change, or other
similar proceeding or action that will in any manner affect the
size of, use of, improvements on, construction on or access to the
Properties, except such proceedings or actions that would not have
a Material Adverse Effect; and (H) other than with respect to the
Property known as "Post Woods," the Company and the Operating
Partnership are the beneficiaries of title insurance on the
Properties in amounts that were commercially reasonable at the time
such policies were issued, and in each case such title insurance is
in full force and effect.
(28) The Company and the Operating Partnership are not, and
upon the issuance and sale of the Underwritten Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment company"
within the meaning of the Investment Company Act of 1940, as
amended (the "1940 Act").
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(29) Except as disclosed in the Prospectus, (A) each Property,
including, without limitation, the Environment (as defined below)
at each Property, is free of any Hazardous Substance (as defined
below) in violation of any Environmental Law (as defined below)
applicable to the Properties except for any Hazardous Substance
that would have any Material Adverse Effect; (B) none of the
Company, the Operating Partnership or any Subsidiary has caused or
suffered to occur any Release (as defined below) of any Hazardous
Substance into the Environment on, in, under or from any Property
in violation of any Environmental Law applicable to such Property,
and no condition exists on, in or under any Property or, to the
knowledge of the Company or the Operating Partnership, any property
adjacent to any Property that could result in the occurrence of
material liabilities under, or any material violations of, any
Environmental Law applicable to such Property, give rise to the
imposition of any Lien (as defined below) under any Environmental
Law, or cause or constitute a health, safety or environmental
hazard to any property, person or entity; (C) none of the Company,
the Operating Partnership or any Subsidiary is engaged in or
intends to engage in any manufacturing or any similar operations at
any Property that (1) require the use, handling, transportation,
storage, treatment or disposal of any Hazardous Substance (other
than paints, stains, cleaning solvents, insecticides, herbicides,
or other substances that are used in the ordinary course of
operating any Property and in compliance with all applicable
Environmental Laws) or (2) require permits or are otherwise
regulated pursuant to any Environmental Law; (D) none of the
Company, the Operating Partnership or any Subsidiary has received
any notice of a claim under or pursuant to any Environmental Law
applicable to a Property or under common law pertaining to
Hazardous Substances on any Property or pertaining to other
property at which Hazardous Substances generated at any Property
have come to be located; (E) none of the Company, the Operating
Partnership or any Subsidiary has received any notice from any
Governmental Authority (as defined below) claiming any violation of
any Environmental Law that is uncured or unremediated as of the
date hereof; and (F) no Property (1) is included or to the
knowledge of the Company, the Operating Partnership or any
Subsidiary, proposed for inclusion on the National Priorities List
issued pursuant to CERCLA (as defined below) by the United States
Environmental Protection Agency (the "EPA") or on the Comprehensive
Environmental Response, Compensation, and Liability Information
System database maintained by the EPA as a potential CERCLA
removal, remedial or response site or (2) is included or proposed
for inclusion on, any similar list of potentially contaminated
sites pursuant to any other applicable Environmental Law nor has
the Company, the Operating Partnership, or any subsidiary received
any written notice from the EPA or any other Governmental Authority
proposing the inclusion of any Property on such list.
As used herein, "Hazardous Substance" shall include, without
limitation, any hazardous substance, hazardous waste, toxic or
dangerous substance, pollutant, solid waste or similarly designated
materials, including, without limitation, oil, petroleum, or any
petroleum-derived substance or waste, asbestos or
asbestos-containing materials, PCBs, pesticides, explosives,
radioactive materials, dioxins, urea formaldehyde insulation or any
constituent of any such substance, pollutant or waste, including
any such substance, pollutant or waste identified, listed or
regulated under any Environmental Law (including, without
limitation, materials listed in the United States Department of
Transportation Optional Hazardous Material Table, 49 C.F.R. Section
172.101, as the same may now or hereafter be amended, or in the
EPA's List of Hazardous Substances and Reportable Quantities, 40
C.F.R. Part 3202, as the same may now or hereafter be amended);
"Environment" shall mean any surface water, drinking water, ground
water, land surface, subsurface strata, river sediment, buildings,
structures, and ambient, workplace and indoor air; "Environmental
Law" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act, as amended (42 U.S.C. Section
9601, et seq.) ("CERCLA"), the Resource Conservation Recovery Act,
as amended (42 U.S.C. Section 6901, et seq.), the Clean Air Act,
as amended (42 U.S.C. Section 7401, et seq.), the Clean Water Act,
as amended (33 U.S.C. Section 1251, et seq.), the Occupational
Safety and Health Act of 1970, as amended (15 U.S.C. Section 2601,
et seq.),
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<PAGE> 11
the Toxic Substances Control Act, as amended (29 U.S.C. Section
651, et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Section 1801, et seq.), together with all
rules, regulations and orders promulgated thereunder and all other
federal, state and local laws, ordinances, rules, regulations and
orders relating to the protection of the environment or of human
health from environmental effects; "Governmental Authority" shall
mean any federal, state or local governmental office, agency or
authority having the duty or authority to promulgate, implement or
enforce any Environmental Law; "Lien" shall mean, with respect to
any Property, any material mortgage, deed of trust, pledge,
security interest, lien, encumbrance, penalty, fine, charge,
assessment, judgment or other liability in, on or affecting such
Property; and "Release" shall mean any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, emanating or disposing of any Hazardous
Substance into the Environment, including, without limitation, the
abandonment or discard of barrels, containers, tanks (including,
without limitation, underground storage tanks) or other receptacles
containing or previously containing any Hazardous Substance or any
release, emission, discharge or similar term, as those terms are
defined or used in any Environmental Law.
(30) Each of the Company, the Operating Partnership and their
Subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are
engaged.
(31) The Company was organized and has operated in conformity
with the requirements for qualification and taxation as a REIT for
its taxable years ending December 31, 1993, 1994 and 1995, and its
current organization and method of operation should enable it to
continue to meet the requirements for qualification and taxation as
a REIT.
(32) The Operating Partnership and each of the Subsidiary
Partnerships are properly classified as partnerships, and not as
corporations or as associations taxable as corporations, for
Federal income tax purposes throughout the period from July 22,
1993 through the date hereoft, or, in the case of any Subsidiary
Partnerships that have terminated, through the date of terminsation
of such Subsidiary Partnerships.
(33) Each of the Company, the Operating Partnership and their
Subsidiaries has filed all federal, state, local and foreign income
tax returns which have been required to be filed (except in any
case in which the failure to file would not have a Material Adverse
Effect) and has paid all taxes required to be paid and any other
assessment, fine or penalty levied against it, to the extent that
any of the foregoing is due and payable, except in all cases for
any such tax, assessment, fine or penalty that is being contested
in good faith.
(34) The Common Stock will be listed on the New York Stock
Exchange on the applicable Representation Date and at the
applicable Closing Time. If so stated in the applicable Prospectus
Supplement, as of the applicable Representation Date, the Preferred
Stock will have been approved for listing on the New York Stock
Exchange upon official notice of issuance.
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<PAGE> 12
(35) Unless otherwise agreed by you, the Preferred Stock will
have an investment grade rating from one or more nationally
recognized statistical rating organizations at the Representation
Date and at the applicable Closing Time.
(b) Any certificate signed by any officer of the Company, the Operating
Partnership or any Subsidiary and delivered to you or to counsel for the
Underwriters in connection with the offering of the Underwritten Securities
shall be deemed a representation and warranty by the Company and the Operating
Partnership to each Underwriter as to the matters covered thereby on the date
of such certificate and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions set forth
herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
may grant, if so provided in the applicable Terms Agreement relating to the
Initial Underwritten Securities, an option to the Underwriters named in such
Terms Agreement, severally and not jointly, to purchase up to the number of the
Option Underwritten Securities set forth therein at a price per Option
Underwritten Security equal to the price per Initial Underwritten Security,
less an amount equal to any dividends or distributions declared by the Company
or the Operating Partnership and paid or payable on the Initial Underwritten
Securities but not payable on the Option Underwritten Securities. Such option,
if granted, will expire 30 days or such lesser number of days as may be
specified in the applicable Terms Agreement after the Representation Date
relating to the Initial Underwritten Securities, and may be exercised in whole
or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Initial Underwritten Securities upon notice by you to the Company setting forth
the number of Option Underwritten Securities as to which the several
Underwriters are then exercising the option and the time, date and place of
payment and delivery for such Option Underwritten Securities. Any such time
and date of payment and delivery (each, a "Date of Delivery") shall be
determined by you, but shall not be later than seven full business days and not
be earlier than two full business days after the exercise of said option,
unless otherwise agreed upon by you and the Company. If the option is
exercised as to all or any portion of the Option Underwritten Securities, each
of the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Underwritten Securities then being
purchased which the number of Initial Underwritten Securities each such
Underwriter has severally agreed to purchase as set forth in such Terms
Agreement bears to the total number of Initial Underwritten Securities, subject
to such adjustments as you in your discretion shall make to eliminate any sales
or purchases of a fractional number of Option Underwritten Securities.
(c) Payment of the purchase price for, and delivery of, the Initial
Underwritten Securities to be purchased by the Underwriters shall be made at
the offices of Hogan & Hartson L.L.P., 555 Thirteenth Street, N.W., Washington,
D.C. 20004, or at such other place as shall be agreed upon by you and the
Company, at 9:00 a.m. (Eastern time) on the fourth business day (or the third
business day if required under Rule 15c6-1 of the 1934 Act, or unless postponed
in accordance with the provisions of Section 10) following the date of the
applicable Terms Agreement, or such other time as shall be agreed upon by you
and the Company (each such time and date of payment and delivery being herein
called a "Closing Time"). In addition, in the event that the Underwriters have
exercised their option, if any, to purchase any or all of the Option
Underwritten Securities, payment of the purchase price for, and delivery of
such Option Underwritten Securities, shall be made at the above-mentioned
offices of Hogan & Hartson L.L.P., or at such other place as shall be agreed
upon by you and the Company, on the relevant Date of Delivery as specified in
the notice from you to the Company or the Operating Partnership.
Payment shall be made to the Company by wire transfer or by certified or
official bank check or checks drawn in Federal or similar same-day funds
payable to the order of the Company against delivery to you for the respective
accounts of the Underwriters of the Underwritten Securities to be purchased by
them. It is understood
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<PAGE> 13
that each Underwriter has authorized you, for its account, to accept delivery
of, receipt for, and make payment of the purchase price, for the Underwritten
Securities which it has severally agreed to purchase. You, individually and
not as representative of the Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Underwritten Securities to be
purchased by any Underwriter whose check has not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) The Underwritten Securities, or, if applicable, Depositary Receipts
evidencing the Depositary Shares, shall be in such authorized denominations and
registered in such names as you may request in writing at least two full
business days prior to the applicable Closing Time or the relevant Date of
Delivery, as the case may be. The Underwritten Securities will be made
available for examination and packaging by you on or before the first business
day prior to the Closing Time or the relevant Date of Delivery, as the case may
be.
If authorized by the applicable Terms Agreement, the Underwriters named
therein may solicit offers to purchase Underwritten Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto with such changes therein as the
Company may approve. As compensation for arranging Delayed Delivery Contracts,
the Company will pay to you at Closing Time, for the respective accounts of the
Underwriters, a fee specified in the applicable Terms Agreement for each of the
Underwritten Securities for which Delayed Delivery Contracts are made at the
applicable Closing Time as is specified in the applicable Terms Agreement. Any
Delayed Delivery Contracts are to be with institutional investors of the types
described in the Prospectus. At the applicable Closing Time, the Company will
enter into Delayed Delivery Contracts (for not less than the minimum number of
Underwritten Securities per Delayed Delivery Contract specified in the
applicable Terms Agreement) with all purchasers proposed by the Underwriters
and previously approved by the Company as provided below, but not for an
aggregate number of Underwritten Securities in excess of that specified in the
applicable Terms Agreement. The Underwriters will not have any responsibility
for the validity or performance of Delayed Delivery Contracts.
You shall submit to the Company, at least three business days prior to the
applicable Closing Time, the names of any institutional investors with which it
is proposed that the Company will enter into Delayed Delivery Contracts and the
number of Underwritten Securities to be purchased by each of them, and the
Company will advise you, at least two business days prior to the applicable
Closing Time, of the names of the institutions with which the making of Delayed
Delivery Contracts is approved by the Company and the number of Underwritten
Securities to be covered by each such Delayed Delivery Contract.
The number of Underwritten Securities agreed to be purchased by the
several Underwriters pursuant to the applicable Terms Agreement shall be
reduced by the number of Underwritten Securities covered by Delayed Delivery
Contracts, as to each Underwriter as set forth in a written notice delivered by
you to the Company; provided, however, that the total number of Underwritten
Securities to be purchased by all Underwriters shall be the total number of
Underwritten Securities covered by the applicable Terms Agreement, less the
number of Underwritten Securities covered by Delayed Delivery Contracts.
SECTION 3. Covenants of the Company and the Operating Partnership. Each
of the Company and the Operating Partnership covenants with you and with each
Underwriter participating in the offering of Underwritten Securities, as
follows:
(a) In respect of each offering of Underwritten Securities,
the Company will prepare a Prospectus Supplement setting forth the
number of Underwritten Securities covered thereby and their terms
not otherwise specified in the Prospectus pursuant to which the
Underwritten Securities are being issued, the names of the
Underwriters participating in the offering and the number of
Underwritten Securities which each severally has agreed to
purchase, the names of the Underwriters acting as co-managers in
connection with the offering, the price at which the Underwritten
Securities are to be purchased by the Underwriters from the
Company, the initial public offering price, if any, the selling
concession and reallowance, if any, any delayed delivery
arrangements, and such other information as you and the Company
deem appropriate in
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<PAGE> 14
connection with the offering of the Underwritten Securities; and
the Company will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424(b) of
the 1933 Act Regulations within the time period required by such
Rule and will furnish to the Underwriters named therein as many
copies of the Prospectus and such Prospectus Supplement as you
shall reasonably request. If, at the time that the Registration
Statement became effective, any information shall have been omitted
therefrom in reliance upon Rule 430A of the 1933 Act Regulations,
then immediately following execution of the applicable Terms
Agreement, the Company will prepare, and file or transmit for
filing with the Commission in accordance with such Rule 430A and
Rule 424(b) of the 1933 Act Regulations, copies of an amended
Prospectus or, if required by such Rule 430A, a post-effective
amendment to the Registration Statement (including an amended
Prospectus), including all information so omitted.
(b) The Company will notify you immediately, and confirm such
notice in writing, of (i) the effectiveness of any amendment to the
Registration Statement, (ii) the transmittal to the Commission for
filing of any Prospectus Supplement or other supplement or
amendment to the Prospectus or any document to be filed pursuant to
the 1934 Act, (iii) the receipt of any comments from the
Commission, (iv) any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (v) the issuance by
the Commission of any stop order suspending the effectiveness of
the Registration Statement or of any order preventing or suspending
the use of any preliminary prospectus, or of the suspension of the
qualification of the Underwritten Securities or offering or sale in
any jurisdiction, or of any proceedings for any of such purposes;
and the Company will make every reasonable effort to prevent the
issuance of any such stop order and, if any stop order is issued,
to obtain the lifting thereof at the earliest possible moment.
(c) At any time when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with
sales of the Underwritten Securities, the Company will give you
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b) of
the 1933 Act Regulations), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, and will furnish you with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file or use any such document to
which you or counsel for the Underwriters shall object.
(d) The Company has furnished or will deliver to you and
counsel for the Underwriters, without charge, as many signed copies
of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and copies of all
consents and certificates of experts, and will also deliver to you
without charge, as many conformed copies of the Registration
Statement as originally filed and of each amendment thereto
(without exhibits) as you may reasonably request. The copies of
the Registration Statement and each amendment thereto furnished to
the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(e) The Company will deliver to each Underwriter, without
charge, as many copies of each preliminary prospectus as such
Underwriter may reasonably request, and the Company and the
Operating Partnership hereby consent to the use of such copies for
purposes permitted by the 1933 Act. The Company will furnish to
each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the
1934 Act, such number of copies of the Prospectus as such
Underwriter may reasonably request. If applicable, the Prospectus
and any amendments or supplements thereto furnished to the
Underwriters will be
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<PAGE> 15
identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(f) The Company will comply with the 1933 Act Regulations and
the 1934 Act and the 1934 Act Regulations so as to permit the
completion of the distribution of the Underwritten Securities as
contemplated in this Agreement and the applicable Terms Agreement
and in the Registration Statement and the Prospectus. If at any
time when the Prospectus is required by the 1933 Act or the 1934
Act to be delivered in connection with sales of the Underwritten
Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the reasonable opinion of
counsel for the Underwriters or for the Company, to amend or
supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
light of the circumstances existing at the time it is delivered to
a purchaser, not misleading, or if it shall be necessary, in the
reasonable opinion of either of such counsel, at any such time to
amend or supplement the Registration Statement or the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, then the Company will promptly prepare and file
with the Commission such amendment or supplement in form and
substance reasonably satisfactory to counsel for the Underwriters,
whether by filing documents pursuant to the 1933 Act, the 1934 Act,
or otherwise, as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus
comply with such requirements, and the Company will furnish to the
Underwriters, without charge, such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(g) The Company will use its best efforts, in cooperation with
the Underwriters, to qualify the Underwritten Securities and any
related Underlying Securities for offering and sale under the
applicable securities laws and real estate syndication laws of such
states and other jurisdictions (domestic or foreign) as you may
designate and to maintain such qualifications in effect; provided,
however, that the Company shall not be obligated to file any
general consent service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or
to subject itself to taxation in respect to doing business in any
jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Underwritten Securities or any related
Underlying Securities have been so qualified, the Company will file
such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for so long
as may be required for the distribution of the Underwritten
Securities or any related Underlying Securities.
(h) With respect to each sale of Underwritten Securities, the
Company and the Operating Partnership will make generally available
to its security holders as soon as practicable, but not later than
90 days after the close of the period covered thereby, an earning
statement (in form complying with the provisions of Rule 158 of the
1933 Act Regulations) covering a 12-month period beginning not
later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in such Rule 158) of the
Registration Statement.
(i) If the applicable Terms Agreement specifies that any
related Underlying Securities include Common Stock or Preferred
Stock, the Company shall reserve and keep available at all times,
free of preemptive or other similar rights, a sufficient number of
shares of Common Stock and/or Preferred Stock, as applicable, for
the purpose of enabling the Company to satisfy any obligations to
issue such Underlying Securities upon conversion of the Preferred
Stock or Depositary Shares, as applicable.
(j) The Company will use the net proceeds received by it from
the sale of the Underwritten Securities in the manner specified in
the Prospectus under "Use of Proceeds."
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<PAGE> 16
(k) The Company will file with the New York Stock Exchange,
Inc. all documents and notices required by the New York Stock
Exchange, Inc. of companies that have securities listed in such
exchange and, to the extent the Preferred Stock or Common Stock are
listed on the New York Stock Exchange, Inc., the Company will use
its best efforts to maintain the listing of any such Underwritten
Securities on the New York Stock Exchange, Inc.
(l) The Company and the Operating Partnership will not,
between the date of the applicable Terms Agreement and the
termination of any trading restrictions or the applicable Closing
Time, whichever is later, with respect to the Underwritten
Securities covered thereby, without your prior written consent,
offer or sell, grant any option for the sale of, or enter into any
agreement to sell, any securities of the same class or series or
ranking on a parity with such Underwritten Securities (other than
the Underwritten Securities which are to be sold pursuant to such
Terms Agreement) or, if such Terms Agreement relates to
Underwritten Securities that are convertible into Common Stock, any
Common Stock or any security convertible into Common Stock (except
for Common Stock issued pursuant to reservations, agreements,
employee benefit plans, dividend reinvestment plans, or employee
and trustee share options plans), except as may otherwise be
provided in the applicable Terms Agreement.
(m) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the 1934 Act within the time
periods required by the 1934 Act and the 1934 Act Regulations.
(n) On or prior to the Closing Time, the Company will cause
Articles of Amendment relating to the Preferred Stock or Preferred
Stock represented by Depositary Shares, if any, to be filed for
record with the Secretary of State of the State of Georgia in
accordance with the Georgia Business Corporation Code.
(o) The Company will continue to elect to qualify as a "real
estate investment trust" under the Code, and will use its best
efforts to meet the requirements to continue to qualify as a "real
estate investment trust" under the Code.
(p) If requested by you, the Company will use its best efforts
to cause each of the executive officers and directors of the
Company to enter into lock-up agreements in form and substance
satisfactory to the Underwriters, and the Company acknowledges that
the Underwriters are intended third party beneficiaries of such
agreements.
(q) Except for the authorization of actions permitted to be
taken by the Underwriters as contemplated herein or in the
Prospectus, the Company will not (i) take, directly or indirectly,
any action designed to cause or to result in, or that might
reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Underwritten Securities, (ii)
sell, bid for or purchase the Underwritten Securities or pay any
person any compensation for soliciting purchases of the
Underwritten Securities or (iii) pay or agree to pay to any person
any compensation for soliciting another to purchase any other
securities of the Company.
(r) From the date hereof until five years after the Closing
Time, the Company and the Operating Partnership shall furnish to
you and your counsel, promptly upon their becoming available,
copies of any document filed with the Commission pursuant to
Section 13, 14 or 15 of the 1934 Act or any securities exchange.
SECTION 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement or the
applicable Terms Agreement or any Deposit Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and
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<PAGE> 17
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation and delivery to the Underwriters of this Agreement, any Terms
Agreement, any Agreement among Underwriters, any Deposit Agreement, and such
other documents as may be required in connection with the offering, purchase,
sale and delivery of the Underwritten Securities or any related Underlying
Securities to the Underwriters, (iii) the preparation, issuance and delivery of
the Underwritten Securities and any related Underlying Securities, any
certificates for the Underwritten Securities or such Underlying Securities or
Depositary Receipts evidencing the Depositary Shares, as applicable, to the
Underwriters, including capital duties, stamp duties, and stock transfer taxes,
if any, (iv) the reasonable fees and disbursements of the Company's counsel,
accountants and other advisors or agents (including transfer agents and
registrars), (v) the qualification of the Underwritten Securities and any
related Underlying Securities under state securities laws and real estate
syndication laws in accordance with the provisions of Section 3(g) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
and delivery of the Blue Sky Memorandum and any amendment thereto, (vi) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus, any Term Sheet, and the Prospectus and any amendments or
supplements thereto, (vii) any fees charged by nationally recognized
statistical rating organizations for the rating of the Underwritten Securities
and any related Underlying Securities, if applicable, (viii) the fees and
expenses incurred with respect to the listing of the Underwritten Securities
and any related Underlying Securities, if applicable, on any national
securities exchange, (ix) the filing fees incident to, and the reasonable fees
and disbursements of counsel to the Underwriters in connection with, the
review, if any, by the National Association of Securities Dealers, Inc. (the
"NASD") of the terms of the sale of the Underwritten Securities and any related
Underlying Securities, (x) the fees and expenses of any Underwriter acting in
the capacity of a "qualified independent underwriter" (as defined in Section
2710(c)(8) of the Conduct Rules of the NASD), if applicable, (xi) the costs and
expenses of the deposit of Preferred Stock under any Deposit Agreement in
exchange for Depositary Receipts, including the charges of the Depositary in
connection therewith and (xii) the fees and expenses of the Depositary,
including the fees and disbursements of counsel for the Depositary.
If the applicable Terms Agreement is terminated by you in accordance with
the provisions of Section 5 or Section 9(b)(i) hereof, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase and pay for the Underwritten
Securities pursuant to the applicable Terms Agreement are subject to the
accuracy as of the date hereof and of Closing Time of the representations and
warranties of the Company and the Operating Partnership contained herein, to
the accuracy of the statements of officers of the Company, the Operating
Partnership or any Subsidiary made in any certificate delivered pursuant to the
provisions hereof, to the performance by the Company and the Operating
Partnership of all of their covenants and other obligations hereunder, and to
the following further conditions:
(a) The Registration Statement, including any Rule 462(b)
Registration Statement, shall have become effective under the 1933 Act
and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on
the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the
Underwriters; (ii) a prospectus containing information relating to the
description of the Underwritten Securities and any related Underlying
Securities, the specific method of distribution and similar matters shall
have been filed within the prescribed time period, and prior to the
applicable Closing Time with the Commission in accordance with Rule
424(b) (or any required post-effective amendment providing such
information shall have been filed and declared effective in accordance
with the requirements of Rule 430A), or, if the Company has elected to
rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet including
the Rule 434 information shall have been filed with the Commission in
accordance with Rule 424(b)(7); (iii) the rating assigned by any
nationally recognized statistical rating organization to any Preferred
Stock of the Company or debt securities of the Operating Partnership as
of the date of the applicable Terms Agreement shall not have been lowered
since such date nor shall any such rating organization have publicly
announced that it has placed any Preferred Stock of the Company or debt
securities of the Operating Partnership on what is commonly termed a
"watch list" for possible downgrading; and (iv) there shall not have come
to your
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<PAGE> 18
attention any facts that would cause you to believe that the Prospectus,
together with the applicable Prospectus Supplement, at the time it was
required to be delivered to purchasers of the Underwritten Securities,
included an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light
of the circumstances existing at such time, not misleading.
(b) At Closing Time, the Representatives shall have received the
opinion, dated as of the applicable Closing Time, of King & Spalding,
counsel for the Company, in form and substance satisfactory to counsel
for the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters, to the effect that:
(i) The Company is a corporation duly formed and is validly
existing and in good standing under the laws of the State of
Georgia. The Company has the power and authority to own, lease and
operate its properties and conduct the business in which it is
engaged, and, to counsel's knowledge, is duly qualified as a
foreign corporation in the jurisdictions set forth in an exhibit to
the opinion.
(ii) The Operating Partnership has been duly formed and is
validly existing as a limited partnership under the Georgia Act.
The Operating Partnership has partnership power and authority to
own, lease and operate its properties and to conduct the business
in which it is engaged and, to counsel's knowledge, is duly
qualified as a foreign partnership in the jurisdictions set forth
in an Exhibit to the opinion. All of the issued and outstanding
interests in the Operating Partnership have been duly authorized
and validly issued and fully paid.
(iii) Each of the Post Services, Inc., Post Asset Management,
Inc., Post Landscape Services, Inc. and RAM Partners, Inc. (the
"Significant Subsidiaries") has been duly formed and is validly
existing and in good standing under the laws of the jurisdiction of
its formation. Each of the Significant Subsidiaries has the power
and authority to own, lease and operate its properties and to
conduct the business in which it is engaged, and, to counsel's
knowledge, is duly qualified as a foreign corporation or
partnership in the jurisdictions set forth in an exhibit to the
opinion. All of the issued and outstanding shares of capital
stock, LLC interests and partnership interests of each Significant
Subsidiary have been duly authorized and validly issued, are fully
paid and are owned, to such counsel's knowledge, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim
or equity, other than the transfer restrictions set forth in the
Option and Transfer Agreement by and among the Operating
Partnership, Post Services, Inc., John A. Williams and John T.
Glover. The ownership of the shares of capital stock of Post
Services, Inc. is as described in the Prospectus. All of the
issued and outstanding shares of capital stock of each of the other
Significant Subsidiaries are owned by Post Services Inc.
(iv) The Underwritten Securities and, if applicable, the
deposit of the Preferred Stock in accordance with the provisions of
a Deposit Agreement, have been duly and validly authorized by all
necessary action, and when executed, authenticated and delivered in
accordance with this Agreement against payment of the consideration
set forth in the applicable Terms Agreement or the Delayed Delivery
Contracts, if any, will be validly issued, fully paid and
non-assessable and will be valid and legally binding obligations of
the Company, enforceable against the Company in accordance with
their terms. The terms of the Underwritten Securities being sold
pursuant to the applicable Terms Agreement conform in all material
respects to the description of the Underwritten Securities set
forth under "Description of Common Stock" in the Prospectus and
under "Description of Common Stock," "Description of Preferred
Stock," "Description of Depositary Shares," or other similar
caption, as the case may be, in the Prospectus Supplement. The
issuance of the Underwritten Securities is not subject to any
statutory preemptive rights or, to counsel's knowledge, any
contractual rights to subscribe for more shares. If applicable,
the form of certificate used to evidence the Underwritten
Securities complies with all applicable statutory requirements.
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<PAGE> 19
(v) If applicable, the Common Stock issuable upon conversion
of any of the Preferred Stock or Depositary Shares have been duly
authorized and reserved for issuance upon such conversion by all
necessary action and such shares, when issued upon such conversion
will be validly issued and will be fully paid and non-assessable,
and the issuance of such shares upon such conversion will not be
subject to any statutory preemptive rights or, to counsel's
knowledge, any contractual rights to subscribe for more shares; and
the Common Stock issuable upon conversion of the Preferred Stock or
the Depositary Shares conform in all material respects to the
descriptions thereof in the Prospectus.
(vi) The applicable Deposit Agreement, if any, has been duly
authorized, executed and delivered by the Company and (assuming due
authorization, execution and delivery of the Deposit Agreement by
the Depositary) constitutes a valid and binding obligation of the
Company enforceable in accordance with its terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors'
rights generally, (B) the availability of equitable remedies may be
limited by equitable principles of general applicability, and (C)
rights to indemnity and contribution thereunder may be limited by
state or federal securities laws or the public policy underlying
such laws; and the Deposit Agreement, if any, conforms in all
material respects to all statements relating thereto contained in
the Prospectus.
(vii) Each of this Agreement, the applicable Terms Agreement
and the Delayed Delivery Contracts, if any, has been duly and
validly authorized, executed and delivered by the Company and the
Operating Partnership, and each of the Company and the Operating
Partnership has the power and authority to perform its obligations
hereunder and thereunder.
(viii) The execution and delivery of this Agreement and the
applicable Terms Agreement by each of the Company and the Operating
Partnership, and the performance by each of the Company and the
Operating Partnership of its obligations hereunder and thereunder
and the consummation of the transactions contemplated hereunder and
thereunder, did not, do not and will not conflict with or
constitute a breach or violation of, or default under: (1) to the
knowledge of counsel, any material contract, indenture, mortgage,
loan agreement, note, lease, joint venture or partnership agreement
or other material instrument or agreement to which the Operating
Partnership is a party or by which it or any of its respective
properties or other assets or any Property may be bound or subject;
(2) the certificate of limited partnership or partnership agreement
of the Operating Partnership; or (3) any applicable law, rule,
order, administrative regulation or administrative or court decree,
except that no opinion is expressed under this clause (3) as to
this Agreement or the Terms Agreement with respect to federal,
state or foreign securities laws.
(ix) The Registration Statement is effective under the 1933
Act and, to counsel's knowledge based solely on telephonic
confirmation from the staff of the Commission, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have
been initiated or threatened by the Commission.
(x) No consent, approval, authorization or order of, or
qualification with, any governmental body or agency and no consent,
approval, or authorization of any person other than the Company and
the Operating Partnership is required for the performance by each
of the Company and the Operating Partnership of its obligations
under this Agreement and the applicable Terms Agreement, except
such as may be required under the 1933 Act and the securities,
Blue Sky or real estate syndication laws of various states in
connection with the offer and sale of the Underwritten Securities.
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<PAGE> 20
(xi) To the knowledge of counsel, there is no action, suit or
proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending or threatened against or affecting
the Company, the Operating Partnership, any Subsidiary or any
material property of the Company that is required to be disclosed
in the Registration Statement (other than as disclosed therein) or
that, if determined adversely to the Company, the Operating
Partnership, any Subsidiary or any property could reasonably be
expected to materially and adversely affect the consummation of the
transactions contemplated by this Agreement. To the knowledge of
counsel, there are no contracts or documents of the Company, the
Operating Partnership or any Subsidiary which are required by the
1933 Act, or by the 1933 Act Regulations, the 1934 Act, or the 1934
Act Regulations to be filed as exhibits to the Registration
Statement, the Prospectus or the documents incorporated by
reference which have not been so filed as exhibits as required.
(xii) None of the Company, the Operating Partnership or any
Subsidiary is required to be registered as an investment company
under the 1940 Act.
(xiii) The information (A) in the Prospectus under the heading
"Description of Common Stock," "Description of Preferred Stock" and
"Description of Depository Shares" and (B) the discussion in the
Prospectus under the heading "Federal Income Tax Considerations"
and in the Prospectus Supplement under the headings "Taxation of
Common Stock Holders," "Taxation of Holders of Preferred Stock," or
other similar caption, as the case may be, to the extent that it
constitutes matters of law or legal conclusions has been reviewed
by such counsel, is correct and presents fairly the information to
be disclosed therein.
(xiv) At the time the Registration Statement became effective
and at the Representation Date, the Registration Statement and
Prospectus (except for financial statements and schedules included
therein, as to which such counsel need not express any opinion),
excluding the documents incorporated by reference therein complied
as to form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations.
(xv) Each document heretofore filed pursuant to the 1934 Act
and incorporated or deemed to be incorporated by reference in the
Prospectus (except for financial statements and schedules and other
financial information included or incorporated by reference
therein, as to which such counsel need not express any opinion)
complied as to form in all material respects with the requirements
of the 1934 Act and the applicable 1934 Act Regulations in effect
at the date of their respective filings.
(xvi) The Company was organized and has operated in conformity
with the requirements for qualification and taxation as a REIT for
its taxable years ending December 31, 1993, 1994 and 1995, and its
current organization and method of operation should enable it to
continue to meet the requirements for qualification as a REIT.
(xvii) The Operating Partnership and each of the Subsidiary
Partnerships are properly classified as partnerships, and not as
corporations or as associations taxable as corporations, for
Federal income tax purposes throughout the period from July 22,
1993 through the date hereof, or, in the case of any Subsidiary
Partnership that have terminated, through the date of termination
of such Subsidiary Partnerships.
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<PAGE> 21
(xviii) To the knowledge of counsel, except as described in
the Prospectus, there are no outstanding rights, warrants or
options to acquire, or instruments convertible into or exchangeable
for, or agreements or understandings with respect to the sale or
issuance of any shares of Common Stock or capital stock of or other
equity interest in the Company or any subsidiary of the Company.
(xix) The Articles of Amendment relating to the Preferred
Stock and the Depositary Shares, if any, have been filed for record
with the Secretary of State of the State of Georgia pursuant to the
Georgia Business Corporation Code and the number of Preferred Stock
and the title, par value, liquidation preference, ranking, dividend
rate or rates (or method of calculation), dividend payment dates,
redemption or sinking fund requirements, conversion provisions and
other terms of the Preferred Stock have been set forth therein.
(c) At Closing Time, you shall have received the favorable
opinion, dated as of the applicable Closing Time, of Hogan & Hartson
L.L.P., counsel for the Underwriters, with respect to the matters set forth in
(i) (first sentence only), (iii), (iv), (v), (vii), (viii), (xii) (solely with
respect to information set forth in "Description of Common Stock"), and (xiii)
of Section 5(b) above.
(d) In rendering their opinions required by Sections 5(b) and
(c), respectively, King & Spalding and Hogan & Hartson L.L.P. shall each
additionally state (which shall not constitute an opinion) that no facts have
come to the attention of such counsel which cause them to believe that the
Registration Statement or any amendment thereto (except for financial
statements and supporting schedules and other financial information and data
included therein or omitted therefrom, as to which such counsel need not
express any view), as of the time it became effective under the 1933 Act
(and as of the time of filing of the Company's Annual Report on Form 10-K,
if filed subsequent to the time of effectiveness) or at the date of the
applicable Terms Agreement, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, or that the Prospectus or any
amendment or supplement thereto (except as aforesaid) as of the date of the
applicable Terms Agreement or at the applicable Closing Time, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
In giving their opinions required by Sections 5(b) and 5(c),
such counsel (A) may rely as to all matters of fact, upon certificates and
written statements of officers and employees of and accountants for the Company
and (B) may rely as to the qualification and good standing of each of the
Company, the Operating Partnership or any of the Subsidiaries to do business in
any state or jurisdiction, upon certificates of appropriate government
officials or opinions of counsel in such jurisdictions, which opinions shall be
in form and substance satisfactory to counsel for the Underwriters. In giving
their belief required in this Section 5(d), such counsel may state that their
belief is based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments and supplements thereto and review
and discussion of the contents thereof.
(e) At Closing Time, there shall not have been, since the date
of the applicable Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any Material Adverse Effect whether or
not arising in the ordinary course of business, and you shall have received a
certificate of the President or a Vice President of the Company and the
Operating Partnership, and the chief financial officer or chief accounting
officer of the Company, dated as of the Closing Time, to the effect that (i)
there has been no such Material Adverse Effect, (ii) the representations and
warranties in Section 1 are true and correct with the same force and effect as
though expressly made at and as of the Closing Time, (iii) the Company and the
Operating Partnership have complied with all agreements and satisfied all
conditions on their part to be performed or satisfied at or prior to the
Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been initiated or threatened by the Commission.
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<PAGE> 22
(f) At the time of the execution of the applicable Terms Agreement,
you shall have received from Price Waterhouse LLP a letter dated such date, in
form and substance satisfactory to you together with signed or reproduced
copies of such letter for each of the other Underwriters, to the effect that:
(i) they are independent accountants with respect to the Company, the Operating
Partnership and their subsidiaries within the meaning of the 1933 Act and the
1933 Act Regulations; (ii) it is their opinion that the consolidated financial
statements and supporting schedules included or incorporated by reference in
the Registration Statement and the Prospectus and covered by their opinions
therein comply in form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations; (iii) based upon
limited procedures set forth in detail in such letter (which shall include,
without limitation, the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial information as
described in SAS No. 71, Interim Financial Information, with respect to the
unaudited financial statements of the Company and the Operating Partnership
included or incorporated by reference in the Registration Statement), nothing
has come to their attention which causes them to believe that (A) any material
modifications should be made to the unaudited condensed financial statements
included or incorporated by reference in the Registration Statement for them to
be in conformity with GAAP or (B) the unaudited condensed financial statements
included or incorporated by reference in the Registration Statement do not
comply as to form in all material respects with the applicable accounting
requirements of the 1934 Act as it applies to Form 10-Q and the related
published rules and regulations or (C) at a specified date not more than five
days prior to the date of the applicable Terms Agreement, there has been any
change in the Common Stock of the Company or partnership interests in the
Operating Partnership or in the consolidated long term debt of the Company and
the Operating Partnership or any decrease in the net assets of the Company, as
compared with the amounts shown in the most recent consolidated balance sheet
included or incorporated by reference in the Registration Statement and the
Prospectus or, during the period from the date of the most recent consolidated
statement of operations included or incorporated by reference in the
Registration Statement and the Prospectus to a specified date not more than
five days prior to the date of the applicable Terms Agreement, there were any
decreases, as compared with the corresponding period in the preceding year, in
consolidated revenues, or decrease in net income or net income per share of
Common Stock of the Company and the Operating Partnership, as applicable,
except in all instances for changes, increases or decreases which the
Registration Statement and the Prospectus disclose have occurred or may occur;
and (iv) in addition to the audit referred to in their opinions and the limited
procedures referred to in clause (iii) above, they have carried out certain
specified procedures with respect to certain amounts, percentages and financial
and statistical information which are included in the Registration Statement
and the Prospectus and which are specified by you, and have found such amounts,
percentages and financial and statistical information to be in agreement with
relevant accounting, financial and other records of the Company and the
Operating Partnership and their Subsidiaries identified in such letter.
(g) At Closing Time, you shall have received from Price Waterhouse
LLP a letter, dated as of the applicable Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection (f)
of this Section 5, except that the specified date referred to shall be a date
not more than three business days prior to the applicable Closing Time and if
the Company has elected to rely on Rule 430A of the 1933 Act Regulations, to
the further effect that they have carried out the procedures specified in
clause (iv) of subsection (f) of this section with respect to certain amounts,
percentages and financial and statistical information specified by you and
deemed to be part of the Registration Statement pursuant to Rule 430A(b) and
have found such amounts, percentages and financial and statistical information
to be in agreement with the records specified in such clause (iv).
(h) At Closing Time and at any relevant Date of Delivery, the
Underwritten Securities shall be rated investment grade by any "nationally
recognized statistical rating organization," as defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in
the Applicable Terms Agreement, and the Company or the Operating Partnership
shall have delivered to you a letter, dated as of such date, from each such
rating organization, or other evidence satisfactory to you, confirming that the
Underwritten Securities have such ratings. Since the time of execution of such
Terms Agreement, there shall not have occurred a downgrading in the rating
assigned to the Underwritten
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<PAGE> 23
Securities or any of the Company's or the Operating Partnership's other
securities by any such rating organization, and no such rating organization
shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of the Underwritten Securities or
any of the Company's or the Operating Partnership's other securities.
(i) At Closing Time, if applicable, the Underwritten Securities
shall have been approved for listing on the NYSE, subject only to official
notice of issuance, if and as specified in the applicable Terms Agreement.
(j) If the Registration Statement or an offering of Underwritten
Securities has been filed with the NASD for review, the NASD shall not have
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(k) On the date of the applicable Terms Agreement, you shall have
received, in form and substance satisfactory to it, each lock-up agreement, if
any, specified in such Terms Agreement as being required to be delivered by the
persons listed therein.
(l) In the event that the Underwriters are granted an
over-allotment option by the Company or the Operating Partnership in the
applicable Terms Agreement and the Underwriters exercise their option to
purchase all or any portion of the Option Underwritten Securities, the
representations and warranties of the Company and the Operating Partnership
contained herein and the statements in any certificates furnished by the
Company or the Operating Partnership hereunder shall be true and correct as of
each Date of Delivery, and, at the relevant Date of Delivery, you shall have
received:
(1) A certificate, dated such Date of Delivery, of the
President or a Vice President of the Company and the chief
financial officer or chief accounting officer of the Company,
confirming that the certificate delivered at the Closing Time
pursuant to Section 5(d) hereof remains true and correct as of such
Date of Delivery,
(2) The favorable opinion of King & Spalding, counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(b) hereof (including the statement of belief
required by Section 5(d) hereof).
(3) The favorable opinion of Hogan & Hartson L.L.P., counsel
for the Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(c) hereof (including the statement of belief
required by Section 5(d) hereof).
(4) A letter from Price Waterhouse LLP, in form and substance
satisfactory to you and dated such Date of Delivery, substantially in the
same form and substance as the letter furnished to you pursuant to
Section 5(f) hereof, except that the "specified date" on the letter
furnished pursuant to this paragraph shall be a date not more than three
business days prior to such Date of Delivery.
(m) At Closing Time and at each Date of Delivery, counsel for the
Underwriters shall have been furnished with such documents and opinions as they
may require for the purpose of enabling them to pass upon the issuance and sale
of the Underwritten Securities as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the
Company or the Operating Partnership in connection with the issuance and sale
of the Underwritten Securities as herein contemplated shall be satisfactory in
form and substance to you and counsel for the Underwriters.
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<PAGE> 24
(n) If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms
Agreement (or, with respect to the Underwriters' exercise of any
applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations
of the Underwriters to purchase the Option Underwritten Securities on
such Date of Delivery) may be terminated by you by notice to the Company
at any time at or prior to the Closing Time (or such Date of Delivery, as
applicable), and such termination shall be without liability of any party
to any other party except as provided in Section 4 and except that
Sections 1, 6 and 7 shall survive any such termination and remain in full
force and effect.
SECTION 6. Indemnification.
(a) Each of the Company and the Operating Partnership agrees, jointly and
severally, to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act, and any director, officer, employee or
affiliate thereof, as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), including
the Rule 430A information and the Rule 434 information deemed to be
a part thereof, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising
out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company and
the Operating Partnership; and
(3) against any and all expense whatsoever, as incurred
(including, without limitation, the fees and other charges of
counsel chosen by the Underwriters), reasonably incurred in
investigating, preparing or defending against any litigation, or
any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not
paid under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company or the
Operating Partnership by any Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
information and the Rule 434 information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company and the Operating Partnership, its directors, officers, employees and
affiliates, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), including the
Rule 430A information and the Rule 434
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<PAGE> 25
information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company or the Operating Partnership by such Underwriter through you expressly
for use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a) above, counsel to the indemnified parties
shall be selected by Merrill Lynch, and, in the case of parties indemnified
pursuant to Section 6(b) above, counsel to the indemnified parties shall be
selected by the Company. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified part in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Operating Partnership on the one hand, and the Underwriters, on the other hand,
from the offering of the Underwritten Securities pursuant to the applicable
Terms Agreement or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Operating Partnership, on the one hand,
and of the Underwriters, on the other hand, in connection with the statements
or omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Operating
Partnership, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of such Underwritten
Securities (before deducting expenses) received by the Company, and the total
underwriting discount received by the Underwriters, in each case as set forth
on the cover of the Prospectus, or, if Rule 434 is used, the corresponding
location on the Term Sheet bear to the aggregate initial public offering price
of such Underwritten Securities as set forth on such cover.
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<PAGE> 26
The relative fault of the Company and the Operating Partnership, on the
one hand, and the Underwriters, on the other hands shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company and the Operating
Partnership or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Operating Partnership, and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this
Section 7. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company and the Operating
Partnership who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company and the Operating Partnership. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number or aggregate principal amount, as the case may be, of Initial
Underwritten Securities set forth opposite their respective names in applicable
Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or the applicable Terms Agreement or in certificates of officers of
the Company or the Operating Partnership submitted pursuant hereto or thereto
shall remain operative and in full force and effect, regardless of any
termination of this Agreement or the applicable Terms Agreement or
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company and the Operating Partnership, and shall survive
delivery of and payment for the Underwritten Securities.
SECTION 9. Termination of Agreement.
(a) This Agreement (excluding the applicable Terms Agreement) may be
terminated for any reason at any time by the Company and the Operating
Partnership or by you upon the giving of 30 days' prior written notice of such
termination to the other party hereto.
(b) You may terminate the applicable Terms Agreement, by notice to the
Company, at any time at or prior to the applicable Closing Time or any relevant
Date of Delivery, if (i) there has been, since the time of execution of such
Terms Agreement or since the respective dates as of which information is given
in the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs, assets or business prospects
of the Company, the Operating Partnership and their subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) there has occurred any material adverse
- 26 -
<PAGE> 27
change in the financial markets in the United States or any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which
is such as to make it, in your judgment, impracticable to market the
Underwritten Securities or to enforce contracts for the sale of the
Underwritten Securities, or (iii) trading in any securities of the Company has
been suspended or limited by the Commission or the New York Stock Exchange,
Inc. or if trading generally on the New York Stock Exchange, Inc. or the
American Stock Exchange, Inc. has been suspended or limited, or, minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by either of said exchanges or order of the Commission or any
other governmental authority, (iv) a banking moratorium has been declared by
either Federal or New York authorities, or (v) if the rating assigned by any
nationally recognized statistical rating organization to any Preferred Stock of
the Company as of the date of the applicable Terms Agreement shall have been
lowered since such date or if any such rating organization shall have publicly
announced that it has placed any Preferred Stock of the Company or Debt
Securities of the Operating Partnership on what is commonly termed a "watch
list" for possible downgrading. As used in this Section 9(b), the term
"Prospectus" means the Prospectus in the form first used to confirm sales of
the Underwritten Securities.
(c) If this Agreement or the applicable Terms Agreement is terminated
pursuant to this Section 9, such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof, and provided
further that Sections 1, 6 and 7 shall survive such termination and remain in
full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the applicable Closing Time or the relevant
Date of Delivery, as the case may be, to purchase the Underwritten Securities
which it or they are obligated to purchase under the applicable Terms Agreement
(the "Defaulted Securities"), then you shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth; if, however, you shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the number of Underwritten Securities to be purchased on such
date pursuant to such Terms Agreement, the non-defaulting
Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their
respective underwriting obligations under such Terms bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of Underwritten Securities to be purchased on such date
pursuant to such Terms Agreement, such Terms Agreement (or, with
respect to the Underwriters' exercise of any applicable
over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the
obligations of the Underwriters to purchase, and the Company to
sell, such Option Underwritten Securities on such Date of Delivery)
shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either you or the Company shall have the right
to postpone the applicable Closing Time or the relevant Date of Delivery, as
the case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any
other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication.
- 27 -
<PAGE> 28
Notices to the Underwriters shall be directed to Merrill Lynch at Merrill Lynch
World Headquarters, World Financial Center, North Tower, New York, New York
10281-1201, attention of Tjarda van S. Clagett; and notices to the Company and
the Operating Partnership shall be directed to it at 3350 Cumberland Circle,
N.W., Suite 2200, Atlanta, Georgia 30339, attention of John T. Glover,
President.
SECTION 12. Parties. This Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon the Company, and the
Operating Partnership, you and, upon execution of such Terms Agreement, any
other Underwriters and their respective successors. Nothing expressed or
mentioned in this Agreement or such Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and the Operating Partnership and their respective successors
and the controlling persons and officers and directors referred to in Sections
6 and 7 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or such Terms
Agreement or any provision herein or therein contained. This Agreement and
such Terms Agreement and all conditions and provisions hereof and thereof are
intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND ANY
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW
YORK CITY TIME.
SECTION 14. Counterparts.
This Agreement and the applicable Terms Agreement may be executed in one
or more counterparts, and if executed in more than one counterpart the executed
counterparts shall contribute a single instrument.
SECTION 15. Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
- 28 -
<PAGE> 29
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this Agreement, along with all counterparts, will become a binding
agreement between you and the Company in accordance with its terms.
Very truly yours,
POST PROPERTIES, INC., for itself and, as
the general partner, on behalf of POST
APARTMENT HOMES, L.P.
By: /s/ John T. Glover
-------------------------------------------
Name: John T. Glover
Title: President
CONFIRMED AND ACCEPTED
as of the date first
above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ John P. Case
---------------------------------------
Name: John P. Case
Title: Vice President
- 29 -
<PAGE> 30
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 $.01 per share (the "Preferred Stock")] [in the form of _____
depositary shares (the "Depositary Shares") each representing ____ of a share
of Preferred Stock] (such securities also being hereinafter referred to as the
"Initial Underwritten Securities"). Subject to the terms and conditions set
forth or incorporated by reference herein, we [the underwriters named below
(the "Underwriters")] offer to purchase, severally and not jointly, the number
of Underwritten Securities [opposite their names set forth below at the
purchase price set forth below, and a proportionate share of Option
Underwritten Securities set forth below, to the extent any are purchased.
Number
Underwriter of Initial Underwritten Securities
Total [$]
<PAGE> 31
The Underwritten Securities shall have the following terms:
[Common Stock]
Title:
Number of shares:
Number of Option Underwritten Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
[Preferred Stock]
Title:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Initial public offering price per share: $____ plus accumulated dividends, if
any, from _____
Purchase price per share: $____ plus accumulated dividends, if any, from _____
Other terms and conditions:
Closing date and location:
[Depositary Shares]
Title:
Fractional Amount of Preferred Stock represented by each Depositary Share:
Ratings:
Rank:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share:
Dividend payment dates:
Liquidation preference per share:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Initial public offering price per share: $____ plus accumulated dividends, if
any, from _____
Purchase price per share: $____ plus accumulated dividends, if any, from _____
Other terms and conditions:
Closing date and location:
-2-
<PAGE> 32
All of the provisions contained in the document attached as Annex I
entitled "POST PROPERTIES, INC. Common Stock, Preferred Stock and Depositary
Shares--Purchase Agreement" are hereby incorporated by reference in their
entirety herein and shall be deemed to be a part of this Terms Agreement to the
same extent as if such provisions had been set forth in full herein. Terms
defined in such document are used herein as therein defined.
Please accept this offer no later than _____ o'clock P.M. (New York City
time) on _____________ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
--------------------------------------------
Authorized Signatory
[Acting on behalf of itself and the other named
Underwriters.]
Accepted:
POST PROPERTIES, INC.
By:
----------------------------------------
Name:
Title:
- 3 -
<PAGE> 1
Exhibit 4(A)
- --------------------------------------------------------------------------------
POST APARTMENT HOMES, L.P.
Issuer
TO
SUNTRUST BANK, ATLANTA
Trustee
--------------------
Indenture
Dated as of September 25, 1996
--------------------
Senior Debt Securities
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
</TABLE>
<TABLE>
<CAPTION>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<S> <C> <C>
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
"Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Additional Amounts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Authenticating Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Authorized Newspaper" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Bankruptcy Law" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Bearer Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Board of Directors" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Board Resolution" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"CEDEL" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Commission" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Common Depositary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Conversion Event" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Corporate Trust Office" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Corporation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"coupon" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Custodian" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Debt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Defaulted Interest" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Dollar" or "$" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"DTC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"ECU" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Euroclear" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"European Community" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"European Monetary System" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"European Union" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Exchange Act" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Foreign Currency" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"GAAP" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"General Partner" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Government Obligations" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C> <C>
"Holder" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Indenture" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Indexed Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Interest" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Interest Payment Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Issuer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Issuer Request" and "Issuer Order" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Judgment Currency" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Legal Holiday" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Maturity" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Officers' Certificate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Opinion of Counsel" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Original Issue Discount Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Outstanding" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Place of Payment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Predecessor Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Recourse Indebtedness" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Redemption Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Redemption Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Registered Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Regular Record Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Repayment Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Repayment Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Responsible Officer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Secured Debt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Security Register" and "Security Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Senior Executive Group" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Significant Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Special Record Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Stated Maturity" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Trust Indenture Act" or "TIA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Trustee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"United States" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"United States Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Yield to Maturity" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 105. Notices, etc., to Trustee and Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 106. Notice to Holders, Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 107. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . 15
</TABLE>
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<TABLE>
<S> <C> <C>
SECTION 108. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 109. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 110. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 111. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 112. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 113. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 114. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 115. Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE TWO
-----------
SECURITIES FORMS
SECTION 201. Forms of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 203. Securities Issuable in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE THREE
-------------
THE SECURITIES
SECTION 301. Amount Unlimited, Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 302. Currency; Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . 28
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 307. Payment of Interest; Interest Rights Reserved . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE FOUR
------------
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 402. Application of Trust Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE FIVE
------------
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
</TABLE>
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<PAGE> 5
<TABLE>
<S> <C> <C>
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . 40
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . 42
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons. . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium, if
any, Interest and Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 512. Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 514. Waiver of Usury, Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 515. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE SIX
-----------
THE TRUSTEE
SECTION 601. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 602. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 603. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . . 48
SECTION 604. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 605. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 606. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests . . . . . . . . . . . . . . . 50
SECTION 608. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . 50
SECTION 609. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 610. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . 52
SECTION 611. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE SEVEN
-------------
HOLDERS' LIST AND REPORTS BY TRUSTEE
AND ISSUER
SECTION 701. Disclosure of Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 702. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 703. Reports by Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 704. Issuer to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . . . 56
</TABLE>
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<PAGE> 6
<TABLE>
<CAPTION>
ARTICLE EIGHT
-------------
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
<S> <C> <C>
SECTION 801. Consolidations and Mergers of Issuer and Sales, Leases and Conveyance Permitted Subject to Certain
Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 802. Rights and Duties of Successor Corporation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 803. Officers' Certificate and Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE NINE
------------
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 902. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 906. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 907. Notice of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE TEN
-----------
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, Interest and
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1003. Money for Securities Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1004. [intentionally omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1005. [intentionally omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1006. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1007. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1008. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1009. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1010. Provision of Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1011. Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1012. Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1013. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
</TABLE>
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<PAGE> 7
<TABLE>
<CAPTION>
ARTICLE ELEVEN
--------------
REDEMPTION OF SECURITIES
<S> <C> <C>
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1103. Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE TWELVE
--------------
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1202. Satisfaction of Sinking Fund Payment with Securities . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE THIRTEEN
----------------
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1302. Repayment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1303. Exercise of Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1304. When Securities Presented for Repayment Become Due and Payable . . . . . . . . . . . . . . . . . . . 75
SECTION 1305. Securities Repaid in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
ARTICLE FOURTEEN
----------------
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Issuer's Option to Effect Defeasance or
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 1402. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 1403. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1404. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
</TABLE>
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<PAGE> 8
<TABLE>
<CAPTION>
ARTICLE FIFTEEN
---------------
MEETINGS OF HOLDERS OF SECURITIES
<S> <C> <C>
SECTION 1501. Purposes For Which Meetings May Be Called . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1502. Call, Notice And Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1503. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 1504. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 1505. Determination of Voting Rights; Conduct And Adjournment of Meetings . . . . . . . . . . . . . . . . 82
SECTION 1506. Counting Votes And Recording Action of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1507. Evidence of Action Taken by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1508. Proof of Execution of Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
ARTICLE SIXTEEN
---------------
SECURITIES IN FOREIGN CURRENCIES
SECTION 1601. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
</TABLE>
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A -- FORMS OF CERTIFICATION
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<PAGE> 9
POST APARTMENT HOMES, L.P.
Reconciliation and Tie between Trust Indenture Act of 1939 (the "TIA"
or "Trust Indenture Act") and Indenture, dated as of September 25, 1996
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
<S> <C>
Sec. 310(a)(1) . . . . . . . . . . . . . . 607
(a)(2) . . . . . . . . . . . . . . . 607
(b) . . . . . . . . . . . . . . . . . 607, 608
Sec. 312(a) . . . . . . . . . . . . . . . . 704
Sec. 312(c) . . . . . . . . . . . . . . . . 701
Sec. 313(a) . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . 702
Sec. 314(a) . . . . . . . . . . . . . . . . 703
(a)(4) . . . . . . . . . . . . . . . 1011
(c)(1) . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . . . . 102
Sec. 315(b) . . . . . . . . . . . . . . . . 601
Sec. 316(a) (last sentence) . . . . . . . . 101 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . . . 508
Sec. 317(a)(1) . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . 504
Sec. 318(a) . . . . . . . . . . . . . . . . 113
(c) . . . . . . . . . . . . . . . . . 113
</TABLE>
- ----------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust Indenture
Act, which provides that the provisions of Sections 310 to and including 317 of
the Trust Indenture Act are a part of and govern every qualified indenture,
whether or not physically contained therein.
-viii-
<PAGE> 10
INDENTURE, dated as of September 25, 1996, between POST APARTMENT
HOMES, L.P., a Georgia limited partnership (the "Issuer"), having its principal
offices at 3350 Cumberland Circle, N.W., Suite 2200, Atlanta, Georgia 30339 and
SUNTRUST BANK, ATLANTA, a national banking association organized under the laws
of the State of Georgia, as Trustee hereunder (the "Trustee"), having its
Corporate Trust Office at 58 Edgewood Avenue, N.E., Atlanta, Georgia 30303.
RECITALS OF THE ISSUER
The Issuer deems it necessary to issue from time to time for its
lawful purposes senior debt securities (hereinafter called the "Securities")
evidencing its unsecured and unsubordinated indebtedness, and has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, unlimited as to principal amount,
to bear interest at the rates or formulas, to mature at such times and to have
such other provisions as shall be fixed as hereinafter provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are deemed to be incorporated
into this Indenture and shall, to the extent applicable, be governed by such
provisions.
All things necessary to make this Indenture a valid agreement of the
Issuer, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, either
directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
<PAGE> 11
(4) the words "herein," "hereof," "hereto" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision; and
(5) the word "or" is always used inclusively.
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required
by a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Issuer in respect of certain taxes,
assessments or other governmental charges imposed on certain Holders and which
are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 611 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the place of publication, customarily
published on each day that is a Business Day in the place of publication,
whether or not published on days that are Legal Holidays in the place of
publication, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any day that is a Business Day in the place of publication.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security established pursuant to Section
201 which is payable to bearer.
"Board of Directors" means the board of directors of the General
Partner or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of one or more resolutions certified
by the Secretary or an Assistant Secretary of the General Partner to have been
duly adopted by the Board of
-2-
<PAGE> 12
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment or any
other location referred to in this Indenture or in the Securities, means,
unless otherwise specified with respect to any Securities pursuant to Section
301, any day other than a Saturday or Sunday or other day on which banking
institutions in that Place of Payment or particular location are authorized or
required by law, regulation or executive order to close.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or its
successor.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Common Depositary" has the meaning specified in Section 304(b).
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country or the confederation which
issued such currency and for the settlement of transactions by a central bank
or other public institutions of or within the international banking community,
(ii) the ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union or (iii)
any currency unit or composite currency other than the ECU for the purposes for
which it was established.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which, at any particular time, its corporate trust business
shall be principally administered, which office at the date hereof is located
at 58 Edgewood Avenue, N.E., Suite 400A, Atlanta, Georgia 30303; provided that
with respect to presentment, transfer, exchange, registration or payment of
Securities, "Corporate Trust Office" means at the date hereof c/o the Corporate
Trust Office of Trust Company of New York, 14 Wall Street, 8th Floor, New York,
New York 10005.
"Corporation" includes corporations and limited liability companies,
associations, partnerships, companies and business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Custodian" has the meaning specified in Section 501.
"Debt" of any Person means, without duplication, any indebtedness of
such Person, whether or not contingent, in respect of (i) borrowed money
evidenced by bonds, notes, debentures or similar instruments, (ii) indebtedness
secured by any mortgage, pledge, lien, charge, encumbrance or any security
interest existing on property owned by such Person, (iii) the
-3-
<PAGE> 13
reimbursement obligations, contingent or otherwise, in connection with any
letters of credit actually issued or amounts representing the balance deferred
and unpaid of the purchase price of any property except any such balance that
constitutes an accrued expense or trade payable or (iv) any lease of property
by such Person as lessee which is reflected on such Person's consolidated
balance sheet as a capitalized lease in accordance with GAAP, in the case of
items of indebtedness under (i) through (iii) above to the extent that any such
items (other than letters of credit) would appear as a liability on such
Person's consolidated balance sheet in accordance with GAAP, and also includes,
to the extent not otherwise included, any obligation by such Person to be
liable for, or to pay, as obligor, guarantor or otherwise (other than for
purposes of collection in the ordinary course of business), Debt of another
Person (other than such Person and its Subsidiaries) (it being understood that
Debt shall be deemed to be incurred by the Issuer and its Subsidiaries on a
consolidated basis whenever the Issuer and its Subsidiaries on a consolidated
basis shall create, assume, guarantee or otherwise become liable in respect
thereof); provided, however, that the term Debt shall not include any such
indebtedness that has been the subject of an "in substance" defeasance in
accordance with GAAP.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"DTC" has the meaning specified in Section 304(b).
"ECU" means European Currency Units as defined and revised from time
to time by the Council of the European Community.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Community" means the European Economic Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Community.
"European Union" means the European Community, the European Coal and
Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
-4-
<PAGE> 14
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the government of
one or more countries other than the United States or by any recognized
confederation or association of such governments.
"GAAP" means generally accepted accounting principles, as in effect
from time to time, as used in the United States applied on a consistent basis;
provided that solely for purposes of any calculation required by the financial
covenants contained herein, "GAAP" shall mean generally accepted accounting
principles as used in the United States on the date hereof, applied on a
consistent basis.
"General Partner" means Post Properties, Inc., a Georgia corporation,
as general partner of the Issuer.
"Government Obligations" means securities which are (i) direct
obligations of the United States or the government which issued the Foreign
Currency in which the Securities of a particular series are payable, for the
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality
of the United States or such government which issued the foreign currency in
which the Securities of such series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States or such other government, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such Government Obligation or held by such custodian for the account of
the holder of a depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder" means, in the case of any Registered Security, the Person in
whose name such Security is registered in the Security Register and, in the
case of any Bearer Security, the bearer thereof and, when used with respect to
any coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of a particular series of Securities established as
contemplated by Section 301.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity and, when used
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with respect to a Security which provides for the payment of Additional Amounts
pursuant to Section 1012, includes such Additional Amounts.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Issuer" means the Person named as the "Issuer" in the first paragraph
of this Indenture until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Issuer" shall mean
such successor Person.
"Issuer Request" and "Issuer Order" mean, respectively, a written
request or order signed in the name of the Issuer by the General Partner by its
Chairman of the Board, its President or a Vice President (whether or not
designated by a number or a word or words added before or after the title "vice
president"), and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, of the General Partner, and delivered to the Trustee.
"Judgment Currency" has the meaning specified in Section 115.
"Legal Holiday" means a day that is not a Business Day.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption or repurchase, notice of
option to elect repayment or otherwise, and includes the Redemption Date.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President (whether or not designated by a
number or a word or words added before or after the title "vice president") of
the General Partner and by the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary of the General Partner, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Issuer or who may be an employee of or other counsel for the
Issuer and who shall be satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
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(i) Securities theretofore canceled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security
Registrar for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Issuer) in trust or set aside and
segregated in trust by the Issuer (if the Issuer shall act as its own
Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision theretofore satisfactory to the Trustee
has been made;
(iii) Securities, except to the extent provided in Section
1402 and 1403, with respect to which the Issuer has effected
defeasance and/or covenant defeasance as provided in Article Fourteen;
and
(iv) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Issuer;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for
such purpose shall be equal to the amount of principal thereof that would be
(or shall have been declared to be) due and payable, at the time of such
determination or calculation, upon a declaration of acceleration of the
maturity thereof pursuant to Section 502, (ii) the principal amount of any
Security denominated in a Foreign Currency that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the Dollar equivalent, determined pursuant to Section
301 as of the date such Security is originally issued by the Issuer, of the
principal amount (or, in the case of an Original Issue Discount Security, the
Dollar equivalent as of such date of original issuance of the amount determined
as provided in clause (i) above) of such Security, (iii) the principal amount
of any Indexed Security that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Security pursuant to
Section 301, and (iv) Securities owned by the Issuer or any other obligor upon
the Securities or any Affiliate of the Issuer or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
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whether the Trustee shall be protected in making such determination or
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee knows to be so owned shall be so disregarded. Securities
so owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the Issuer
or any other obligor upon the Securities or any Affiliate of the Issuer or of
such other obligor.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of (and premium and Additional Amounts, if any) or interest on any
Securities or coupons on behalf of the Issuer.
"Person" means any individual, Corporation, joint venture, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment," when used with respect to any Security, means the
place or places where the principal of (and premium and Additional Amounts, if
any) and interest on such Securities are payable as specified as contemplated
by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Recourse Indebtedness" means Debt other than Secured Debt as to which
the liability of the obligor thereon is limited to its interest in the
collateral securing such Secured Debt, provided that no such Secured Debt shall
constitute Recourse Indebtedness by reason of provisions therein for imposition
of full recourse liability on the obligor for certain wrongful acts,
environmental liabilities, or other customary exclusions from the scope of
so-called "non-recourse" provisions.
"Redemption Date," when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture or such Security.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture or such Security.
"Registered Security" shall mean any Security which is registered in
the Security Register.
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"Regular Record Date" for the interest payable on any Interest Payment
Date on any Registered Security of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means
the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of such officer's knowledge and familiarity with the
particular subject.
"Secured Debt" means, without duplication, Debt that is secured by a
mortgage, trust deed, deed of trust, deed to secure debt, security agreement,
pledge, conditional sale or other title retention agreement, capitalized lease,
or other like agreement granting or conveying security title to or a security
interest in real property or other tangible assets.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities
authenticated and delivered under this Indenture; provided, however, that, if
at any time there is more than one Person acting as Trustee under this
Indenture, "Securities" with respect to the Indenture as to which such Person
is Trustee shall have the meaning stated in the first recital of this Indenture
and shall more particularly mean Securities authenticated and delivered under
this Indenture, exclusive, however, of Securities of any series as to which
such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Executive Group" shall mean, collectively, those individuals
holding the offices of Chairman of the Board, President, Chief Executive
Officer, Chief Operating Officer, or any Executive Vice President of the
General Partner.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act of 1933, as amended) of the Issuer.
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"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon or any Additional Amounts
with respect thereto, means the date specified in such Security or a coupon
representing such installment of interest as the fixed date on which the
principal of such Security or such installment of principal or interest, or
such Additional Amounts are due and payable.
"Subsidiary" means (i) any Corporation or other entity the majority of
the shares of the non-voting capital stock or other equivalent ownership
interests of which (except directors' qualifying shares) are at the time
directly or indirectly owned by the Issuer or the General Partner, and the
majority of the shares of the voting capital stock or other equivalent
ownership interests of which (except directors' qualifying shares) are at the
time directly or indirectly owned by the Issuer, the General Partner, any other
Subsidiary, and/or one or more individuals of the Senior Executive Group (or,
in the event of death or disability of any of such individuals, his/her
respective legal representative(s)), or such individuals' successors in office
as an officer of the General Partner or the Secretary of such Subsidiary, and
(ii) any other entity (other than the General Partner) the accounts of which
are consolidated with the accounts of the Issuer.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a Corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as
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set forth in such Security in accordance with generally accepted United States
bond yield computation principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. Except as
otherwise expressly provided in this Indenture, upon any application or request
by the Issuer to the Trustee to take any action under any provision of this
Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 1011) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
or not such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion as to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the General Partner may be
based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations of or by counsel, unless such officer knows, or
in the exercise of reasonable care should know, that the
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opinion, certificate or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any such Opinion of Counsel
or certificate or representations may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the General Partner stating that the information as to
such factual matters is in the possession of the Issuer, unless such counsel
knows that the certificate or opinion or representations as to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such
Holders in person or by agents duly appointed in writing. If, but only if,
Securities of a series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of Securities of such series
may, alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
Fifteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Issuer. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and (subject to Section 315 of the Trust Indenture Act)
conclusive in favor of the Trustee and the Issuer and any agent of the Trustee
or the Issuer, if made in the manner provided in this Section . The record of
any meeting of Holders of Securities shall be proved in the manner provided in
Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee
may determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(c) The ownership, principal amount and serial numbers of
Registered Securities held by any Person, and the date of the commencement and
the date of the termination of holding the same, shall be proved by the
Security Register.
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(d) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same may be proved by the production of such
Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary reasonably acceptable to the Issuer,
wherever situated, if such certificate shall be deemed by the Issuer and the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Issuer may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced
to the Trustee by some other Person, or (3) such Bearer Security is surrendered
in exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The ownership, principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument in writing and the
date of the commencement and the date of the termination of holding the same
may also be proved in any other manner which the Trustee deems sufficient.
(e) If the Issuer shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Issuer may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders of
Registered Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Issuer shall have no
obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of Registered Securities
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Securities shall be computed as
of such record date; provided that no such authorization, agreement or consent
by the Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than
eleven months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Issuer in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND ISSUER. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with
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(1) the Trustee by a Holder or by the Issuer shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(2) the Issuer by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first class postage
prepaid, to the Issuer addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any
other address previously furnished in writing to the Trustee by the
Issuer.
SECTION 106. NOTICE TO HOLDERS; WAIVER. Where this Indenture
provides for notice of any event to Holders of Registered Securities by the
Issuer or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders of Registered Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders of Registered Securities or the sufficiency of
any notice to Holders of Bearer Securities given as provided herein. Any
notice mailed to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder
actually receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered Securities as
shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in New York
City and in such other city or cities as may be specified in such Securities on
a Business Day, such publication to be not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. Any
such notice shall be deemed to have been given on the date of such publication
or, if published more than once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notifications to Holders of Bearer Securities as shall be
given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice
by publication to any particular Holder of Bearer Securities as provided above,
nor any defect in any notice so
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<PAGE> 24
published, shall affect the sufficiency of such notice with respect to other
Holders of Bearer Securities or the sufficiency of any notice to Holders of
Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent, waiver
or Act required or permitted under this Indenture shall be in the English
language, except that, if the Issuer so elects, any published notice may be in
an official language of the country of publication.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture by the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 109. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in any Security or coupon shall be deemed invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. BENEFITS OF INDENTURE. Nothing in this Indenture or in
the Securities or coupons, express or implied, shall give to any Person, other
than the parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. GOVERNING LAW. This Indenture and the Securities and
coupons shall be governed by and construed in accordance with the laws of the
State of New York.
SECTION 112. LEGAL HOLIDAYS. In any case where any Interest Payment
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security, or the last date on which a Holder has
the right to exchange Securities of a series that are exchangeable, shall be a
Legal Holiday at any Place of Payment, then (notwithstanding any other
provision of this Indenture or any Security or coupon other than a provision in
any Security or coupon that specifically states that such provision shall apply
in lieu hereof), payment of interest or any Additional Amounts or principal
(and premium, if any) need not be made at such Place of Payment on such date
and such Securities need not be exchanged on such date, but such payment may be
made and such Securities may be exchanged on the next succeeding Business
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Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, Redemption Date, Repayment Date or sinking fund payment
date, or at the Stated Maturity or Maturity or on such last day for exchange,
provided that no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date, Repayment Date,
sinking fund payment date, Stated Maturity or Maturity or last day for or
exchange, as the case may be.
SECTION 113. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with any duties under any required
provision of the Trust Indenture Act imposed hereon by Section 318(c) thereof,
such required provision shall control.
SECTION 114. COUNTERPARTS. This Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
SECTION 115. JUDGMENT CURRENCY. The Issuer agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of, or premium or interest, if any, or
Additional Amounts on the Securities of any series (the "Required Currency")
into a currency in which a judgment will be rendered (the "Judgment Currency"),
the rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Banking Day
preceding that on which a final unappealable judgment is given and (b) its
obligations under this Indenture to make payments in the Required Currency (i)
shall not be discharged or satisfied by any tender, or any recovery pursuant to
any judgment (whether or not entered in accordance with clause (a)), in any
currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the actual receipt, by the payee, of the
full amount of the Required Currency expressed to be payable in respect of such
payments, (ii) shall be enforceable as an alternative or additional cause of
action for the purpose of recovering in the Required Currency the amount, if
any, by which such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable, and (iii) shall not be affected
by judgment being obtained for any other sum due under this Indenture. For
purposes of the foregoing, "New York Banking Day" means any day except a Legal
Holiday in The City of New York.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. FORMS OF SECURITIES. The Registered Securities, if any,
of each series and the Bearer Securities, if any, of each series and related
coupons shall be in substantially the forms as shall be established in one or
more indentures supplemental hereto or approved from
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time to time by or pursuant to a Board Resolution in accordance with Section
301, shall have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or any indenture
supplemental hereto, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements placed thereon
as the Issuer may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Securities may be listed, or to
conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced
by their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
(TRUSTEE)
as Trustee
By:
--------------------------
Authorized Signatory
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM. If Securities of or
within a series are issuable in global form, as specified as contemplated by
Section 301, then, notwithstanding clause (9) of Section 301 and the provisions
of Section 302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
or any number of such Securities shall represent the aggregate amount of
Outstanding Securities of such series from time to time endorsed thereon and
may also provide that the aggregate amount of Outstanding Securities of such
series represented thereby may from time to time be increased or decreased to
reflect exchanges. Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made in such manner and by such Person or Persons
as shall be specified therein or in the Issuer Order to be delivered pursuant
to Section 303 or 304.
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Subject to the provisions of Section 303 and, if applicable, Section 304, the
Trustee shall deliver and redeliver any Security in permanent global form in
the manner and upon instructions given by the Person or Persons specified
therein or in the applicable Issuer Order. If an Issuer Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any instructions
by the Issuer with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply with Section
102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Issuer and the Issuer delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of, and any
premium and interest on, and any Additional Amounts in respect of, any
Security in temporary or permanent global form shall be made to the Person or
Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Issuer, the Trustee and any agent of the Issuer
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a global Security (i) in the case of
global Security in registered form, the Holder of such global Security in
registered form, or (ii) in the case of a global Security in bearer form, the
Person or Persons specified pursuant to Section 301.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted
by one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (16) below), if
so provided, may be determined from time to time by the Issuer with respect to
unissued Securities of the series when issued from time to time):
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(1) the title of the Securities of the series (which
shall distinguish the Securities of such series from all other series
of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107
or 1305);
(3) the percentage of the principal amount at which the
Securities of the series will be issued and, if other than the
principal amount thereof, the portion of the principal amount thereof
payable upon declaration of acceleration of maturity thereof;
(4) the date or dates, or the method for determining such
date or dates, on which the principal of the Securities of the series
shall be payable;
(5) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method by which such rate
or rates shall be determined, the date or dates from which such
interest shall accrue or the method by which such date or dates shall
be determined, the Interest Payment Dates on which such interest will
be payable and the Regular Record Date, if any, for the interest
payable on any Registered Security on any Interest Payment Date, or
the method by which such date shall be determined, and the basis upon
which interest shall be calculated if other than that of a 360-day
year of twelve 30-day months;
(6) the place or places, if any, other than or in
addition to the Borough of Manhattan, New York City, where (i) the
principal of (and premium, if any), interest, if any, on, and
Additional Amounts, if any, payable in respect of, the Securities of
the series shall be payable, (ii) any Registered Securities of the
series may be surrendered for registration of transfer or exchange and
(iii) notices or demands to or upon the Issuer in respect of the
Securities of the series and this Indenture may be served;
(7) the period or periods within which, the price or
prices at which, the currency or currencies, currency unit or units or
composite currency or currencies in which, and other terms and
conditions upon which the Securities of the series may be redeemed, as
a whole or in part, at the option of the Issuer, if the Issuer is to
have such an option;
(8) the obligation, if any, of the Issuer to redeem,
repay or purchase the Securities of the series pursuant to any sinking
fund or analogous provision or at the option of a Holder thereof, and
the period or periods within which or the date or dates on which, the
price or prices at which, the currency or currencies, currency unit or
units or composite currency or currencies in which, and other terms
and conditions upon which the
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Securities of the series shall be redeemed, repaid or purchased, as a
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which any Registered
Securities of the series shall be issuable and, if other than
denominations of $5,000 and any integral multiple thereof, the
denomination or denominations in which any Bearer Securities of the
series shall be issuable;
(10) if other than the Trustee, the identity of each
Security Registrar and/or Paying Agent;
(11) if other than the principal amount thereof, the
portion of the principal amount of the Securities of the series that
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the method by which such portion
shall be determined;
(12) if other than Dollars, the Foreign Currency or
Currencies in which payment of the principal of (and premium, if any)
or interest or Additional Amounts, if any, on the Securities of the
series shall be payable or in which the Securities of the series shall
be denominated;
(13) whether the amount of payments of principal of (and
premium, if any) or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on
one or more currencies, currency units, composite currencies,
commodities, equity indices or other indices), and the manner in which
such amounts shall be determined;
(14) whether the principal of (and premium, if any) or
interest or Additional Amounts, if any, on the Securities of the
series are to be payable, at the election of the Issuer or a Holder
thereof, in a currency or currencies, currency unit or units or
composite currency or currencies other than that in which such
Securities are denominated or stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made, and the time and manner of, and identity of the
exchange rate agent with responsibility for, determining the exchange
rate between the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are
denominated or stated to be payable and the currency or currencies,
currency unit or units or composite currency or currencies in which
such Securities are to be so payable;
(15) provisions, if any, granting special rights to the
Holders of the Securities of the series upon the occurrence of such
events as may be specified;
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<PAGE> 30
(16) any deletions from, modifications of or additions to
the Events of Default or covenants of the Issuer with respect to the
Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(17) whether the Securities of the series will be in
certificated or book-entry form and, if certificated, whether
Securities of the series are to be issuable as Registered Securities,
Bearer Securities (with or without coupons) or both, any restrictions
applicable to the offer, sale or delivery of Bearer Securities and the
terms upon which Bearer Securities of the series may be exchanged for
Registered Securities of the series and vice versa (if permitted by
applicable laws and regulations), whether any Securities of the series
are to be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form
with or without coupons and, if so, whether beneficial owners of
interests in any such permanent global Security may exchange such
interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided in
Section 305, and, if Registered Securities of the series are to be
issuable as a global Security, the identity of the depositary for such
series;
(18) the date as of which any Bearer Securities of the
series and any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be issued;
(19) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest, the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to
which, or the manner in which, any interest payable on a temporary
global Security on an Interest Payment Date will be paid if other than
in the manner provided in Section 304;
(20) the applicability, if any, of Sections 1402 and/or
1403 to the Securities of the series and any provisions in
modification of, in addition to or in lieu of, any of the provisions
of Article Fourteen;
(21) if the Securities of such series are to be issuable
in definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or
conditions;
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<PAGE> 31
(22) whether and under what circumstances the Issuer will
pay Additional Amounts on the Securities of the series to any Holder
who is not a United States Person (including any modification to the
definition of such term) in respect of any tax, assessment or
governmental charge and, if so, whether the Issuer will have the
option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option);
(23) with respect to any Securities that provide for
optional redemption or prepayment upon the occurrence of certain
events (such as a change of control of the Issuer), (i) the possible
effects of such provisions on the market price of the Issuer's or the
General Partner's securities or in deterring certain mergers, tender
offers or other takeover attempts, and the intention of the Issuer to
comply with the requirements of Rule 14e-1 under the Exchange Act and
any other applicable securities laws in connection with such
provisions; (ii) whether the occurrence of the specified events may
give rise to cross-defaults on other indebtedness such that payment on
such Securities may be effectively subordinated; and (iii) the
existence of any limitations on the Issuer's financial or legal
ability to repurchase such Securities upon the occurrence of such an
event (including, if true, the lack of assurance that such a
repurchase can be effected) and the impact, if any, under the
Indenture of such a failure, including whether and under what
circumstances such a failure may constitute an Event of Default; and
(24) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons, if any, appertaining
to any Bearer Securities of the series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to the Board Resolution establishing the
series (subject to Section 303) and set forth in an Officers' Certificate or in
any indenture supplemental hereto. All Securities of any one series need not
be issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an
appropriate record of such action(s) shall be certified by the Secretary or an
Assistant Secretary of the General Partner and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate setting forth the terms of
the Securities of such series.
SECTION 302. CURRENCY; DENOMINATIONS. Unless otherwise provided as
contemplated by Section 301, the principal of, any premium and interest on and
any Additional Amounts with respect to the Securities shall be payable in
Dollars. Unless otherwise provided as contemplated by Section 301, Registered
Securities denominated in Dollars (other than Registered Securities issued in
global form, which may be of any denomination) shall be issuable
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in denominations of $1,000 and any integral multiple thereof, and the Bearer
Securities denominated in Dollars (other than Bearer Securities issued in
global form, which may be of any denomination) shall be issuable in
denominations of $5,000 and any integral multiple thereof. Securities not
denominated in Dollars shall be issuable in such denominations as are
established with respect to such Securities in or pursuant to this Indenture.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The
Securities and any coupons appertaining thereto shall be executed on behalf of
the Issuer by the General Partner by its Chairman of the Board, its President
or one of its Vice Presidents (whether or not designated by a number or word or
words added before or after the title "vice president"), under its corporate
seal reproduced thereon, and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities and
coupons may be manual or facsimile signatures of the present or any future such
authorized officer and may be imprinted or otherwise reproduced on the
Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the General Partner
shall bind the Issuer, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such Securities or
coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver the Securities of any series, together
with any coupon appertaining thereto, executed by the Issuer to the Trustee for
authentication, together with an Issuer Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Issuer
Order shall authenticate and delivery such Securities; provided, however, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate to Euroclear or CEDEL, as the case
may be, in the form set forth in Exhibit A-1 to this Indenture or such other
certificate as may be specified with respect to any series of Securities
pursuant to Section 301, dated no earlier than 15 days prior to the earlier of
the date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If
any Security shall be represented by a permanent global Bearer Security, then,
for purposes of this Section and Section 304, the notation of a beneficial
owner's interest therein upon original issuance of such Security or upon
exchange of a portion of temporary global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent global Security. Except as permitted by Section
306, the Trustee shall not authenticate and deliver any Bearer Security unless
all appurtenant coupons for interest then matured have been detached and
canceled.
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If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Issuer Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate or formula,
maturity date, date of issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to TIA Section 315(a) through 315(d)) shall
be fully protected in relying upon:
(i) an Opinion of Counsel stating that:
(a) the terms and the form or forms or terms of
such Securities and any coupons have been established in
conformity with the provisions of this Indenture; and
(b) such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions
and executed and delivered by the Issuer to the Trustee for
authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with
this Indenture and issued by the Issuer in the manner and
subject to any conditions specified in such Opinion of
Counsel, will constitute legal, valid and binding obligations
of the Issuer, enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency, reorganization
and other similar laws of general applicability relating to or
affecting the enforcement of creditors' rights generally and
to general equitable principles and will entitle the Holders
thereof to the benefits of this Indenture; and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of
the Securities have been complied with and that, to the best of the
knowledge of the signers of such certificate, no Event of Default with
respect to any of the Securities shall have occurred and be
continuing.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Officers' Certificate otherwise
required pursuant to Section 301 or an Issuer Order, or an Opinion of Counsel
or an Officers' Certificate otherwise required pursuant to the preceding
paragraph at the time of issuance of each Security of such series, but such
order, opinion and certificates, with appropriate modifications to cover such
future issuances, shall be delivered at or before the time of issuance of the
first Security of such series.
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Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as
contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Issuer, and the Issuer shall deliver
such Security to the Trustee for cancellation as provided in Section 309
together with a written statement (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) stating that such Security
has never been issued and sold by the Issuer, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. TEMPORARY SECURITIES. (a) Pending the preparation of
definitive Securities of any series, the Issuer may execute, and upon Issuer
Order the Trustee shall authenticate and deliver, temporary Securities which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form, or, if
authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as conclusively
evidenced by their execution of such Securities. Such temporary Securities may
be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Issuer will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Issuer in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any nonmatured coupons appertaining thereto), the Issuer shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in
this Indenture. Until so exchanged, the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
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(b) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(b) shall govern the exchange of temporary
Securities issued in global form other than through the facilities of The
Depository Trust Company ("DTC"). If any such temporary Security is issued in
global form, then such temporary global Security shall, unless otherwise
provided therein, be delivered to the London office of a depositary or common
depositary (the "Common Depositary"), for the benefit of Euroclear and CEDEL,
for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct).
Without unnecessary delay, but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Issuer shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Issuer. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Issuer's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof;
provided, however, that, unless otherwise specified in such temporary global
Security, upon such presentation by the Common Depositary, such temporary
global Security is accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euroclear as to the portion of such temporary
global Security held for its account then to be exchanged and a certificate
dated the Exchange Date or a subsequent date and signed by CEDEL as to the
portion of such temporary global Security held for its account then to be
exchanged, each in the form set forth in Exhibit A-2 to this Indenture or in
such other form as may be established pursuant to Section 301; and provided
further that definitive Bearer Securities shall be delivered in exchange for a
portion of a temporary global Security only in compliance with the requirements
of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may
be established pursuant to Section 301), dated no earlier than 15 days prior to
the Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise
specified in such temporary global Security, any such exchange shall be made
free of charge to the beneficial owners of such temporary global Security,
except that a Person receiving definitive Securities
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<PAGE> 36
must bear the cost of insurance, postage, transportation and the like unless
such Person takes delivery of such definitive Securities in person at the
offices of Euroclear or CEDEL. Definitive Securities in bearer form to be
delivered in exchange for any portion of a temporary global Security shall be
delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary
global Security on an Interest Payment Date for Securities for such series
occurring prior to the applicable Exchange Date shall be payable to Euroclear
and CEDEL on such Interest Payment Date upon delivery by Euroclear and CEDEL to
the Trustee of a certificate or certificates in the form set forth in Exhibit
A-2 to this Indenture (or in such other forms as may be established pursuant to
Section 301), for credit without further interest on or after such Interest
Payment Date to the respective accounts of Persons who are the beneficial
owners of such temporary global Security on such Interest Payment Date and who
have each delivered to Euroclear or CEDEL, as the case may be, a certificate
dated no earlier than 15 days prior to the Interest Payment Date occurring
prior to such Exchange Date in the form set forth as Exhibit A-1 to this
Indenture (or in such other forms as may be established pursuant to Section
301). Notwithstanding anything to the contrary herein contained, the
certifications made pursuant to this paragraph shall satisfy the certification
requirements of the preceding two paragraphs of this Section 304(b) and of the
third paragraph of Section 303 of this Indenture and the interests of the
Persons who are the beneficial owners of the temporary global Security with
respect to which such certification was made will be exchanged for definitive
Securities of the same series and of like tenor on the Exchange Date or the
date of certification if such date occurs after the Exchange Date, without
further act or deed by such beneficial owners. Except as otherwise provided in
this paragraph, no payments of principal or interest owing with respect to a
beneficial interest in a temporary global Security will be made unless and
until such interest in such temporary global Security shall have been exchanged
for an interest in a definitive Security. Any interest so received by
Euroclear and CEDEL and not paid as herein provided shall be returned to the
Trustee prior to the expiration of two years after such Interest Payment Date
in order to be repaid to the Issuer.
(c) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(c) shall govern the exchange of temporary
Securities issued in global form through the facilities of DTC. If any such
temporary Security is issued in global form, then such temporary global
security shall, unless otherwise provided therein, be delivered to DTC for
credit to the respective accounts of the beneficial owners of such Securities
(or to such other accounts as they may direct).
Without unnecessary delay, but in any event not later than the
Exchange Date, the Issuer shall deliver to the Trustee definitive Securities,
in aggregate principal amount equal to the principal amount of such temporary
global Security, executed by the Issuer. On or after the
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Exchange Date, such temporary global Security shall be surrendered by DTC to
the Trustee, as the Issuer's agent for such purpose, to be exchanged, in whole
or from time to time in part, for definitive Securities without charge, and the
Trustee shall authenticate and deliver, in exchange for each portion of such
temporary global Security, an equal aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such temporary global Security to be exchanged. The definitive
Securities to be delivered in exchange for any such temporary global Security
shall be in registered form or permanent global registered form, or any
combination thereof, as specified as contemplated by Section 301, and, if any
combination thereof is so specified as requested by the beneficial owner
thereof.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs DTC to
request such exchange on his behalf. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of charge to
the beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such
definitive Securities in person.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary
global Security on an Interest Payment Date for Securities for such series
occurring prior to the applicable Exchange Date shall be payable to DTC on such
Interest Payment Date, for credit without further interest on or after such
Interest Payment Date to the respective accounts of Persons who are the
beneficial owners of such temporary global Security on such Interest Payment
Date.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Issuer shall cause to be kept at the Corporate Trust Office of the Trustee
or in any office or agency of the Issuer in a Place of Payment a register for
each series of Securities (the registers maintained in such office or in any
such office or agency of the Issuer in a Place of Payment being herein
sometimes referred to collectively as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Issuer shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby appointed
"Security Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities on such Security Register as herein
provided. The Issuer shall have the right to remove and replace from time to
time the Security Registrar for any series of Securities; provided that no such
removal or replacement shall be effective until a successor Security
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Registrar with respect to such series of Securities shall have been appointed
by the Issuer and shall have accepted such appointment by the Issuer. In the
event that the Trustee shall cease to be Security Registrar, it shall have the
right to examine the Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the Issuer in a Place of Payment for that series, the Issuer shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount, bearing a number not contemporaneously outstanding, and
containing identical terms and provisions. Whenever any such Registered
Securities are so surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Registered Securities which the
Holder making the exchange is entitled to receive.
Unless otherwise specified with respect to any series of Securities as
contemplated by Section 301, Bearer Securities may not be issued in exchange
for Registered Securities. If (but only if) permitted by the applicable Board
Resolution and (subject to Section 303) set forth in the applicable Officers'
Certificate, or in any indenture supplemental hereto, delivered as contemplated
by Section 301, at the option of the Holder, Bearer Securities of any series
may be exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or
agency, with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in default, any such
permitted exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Issuer in an amount equal to the face amount
of such missing coupon or coupons, or the surrender of such missing coupon or
coupons may be waived by the Issuer and the Trustee if there is furnished to
them such security or indemnity as they may require to save each of them and
any Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to any Paying Agent any such missing coupon in respect of which such
a payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; provided, however, that, except as otherwise provided
in Section 1002, interest represented by coupons shall be payable only upon
presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in a
permitted exchange for a Registered Security of the same series and like tenor
after the close of business at such office or agency on (i) any Regular Record
Date and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or proposed date for
payment, as the case may be, and interest or Defaulted Interest, as the case
may be, will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable
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only to the Holder of such coupon when due in accordance with the provisions of
this Indenture. Whenever any Securities are so surrendered for exchange, the
Issuer shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
If provided as contemplated by Section 301, at the option of the
Holder, Registered Securities of such series may be exchanged for Bearer
Securities upon such terms and conditions as may be provided in or pursuant to
this Indenture with respect to such series. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange
is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the depositary for any
permanent global Security is DTC, then unless the terms of such global Security
expressly permit such global Security to be exchanged in whole or in part for
definitive Securities, a global Security may be transferred, in whole but not
in part, only to a nominee of DTC, or by a nominee of DTC to DTC, or to a
successor to DTC for such global Security selected or approved by the Issuer or
to a nominee of such successor to DTC. If at any time DTC notifies the Issuer
that it is unwilling or unable to continue as depositary for the applicable
global Security or Securities or if at any time DTC ceases to be a clearing
agency registered under the Exchange Act if so required by applicable law or
regulation, the Issuer shall appoint a successor depositary with respect to
such global Security or Securities. If (x) a successor depositary for such
global Security or Securities is not appointed by the Issuer within 90 days
after the Issuer receives such notice or becomes aware of such unwillingness,
inability or ineligibility, (y) an Event of Default has occurred and is
continuing and the beneficial owners representing a majority in principal
amount of the applicable series of Securities represented by such global
Security or Securities advise DTC to cease acting as depositary for such global
Security or Securities or (z) the Issuer, in its sole discretion, determines at
any time that all Outstanding Securities (but not less than all) of any series
issued or issuable in the form of one or more global Securities shall no longer
be represented by such global Security or Securities, then the Issuer shall
execute, and the Trustee shall authenticate and deliver definitive Securities
of like series, rank, tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of such global Security or
Securities. If any beneficial owner of an interest in a permanent global
Security is otherwise entitled to exchange such interest for Securities of such
series and of like tenor and principal amount of another authorized form and
denomination, as specified as contemplated by Section 301 and provided that any
applicable notice provided in the permanent global Security shall have been
given, then without unnecessary delay but in any event not later than the
earliest day on which such interest may be so exchanged, the Issuer shall
execute, and the Trustee shall authenticate and deliver definitive Securities
in aggregate principal amount equal to the principal amount of such beneficial
owner's interest in such permanent global Security. On or after the earliest
date on which such interests may be so exchanged, such permanent global
Security shall be surrendered for exchange by DTC or such other depositary as
shall be specified in the Issuer
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Order with respect thereto to the Trustee, as the Issuer's agent for such
purpose; provided, however, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities
to be redeemed and ending on the relevant Redemption Date if the Security for
which exchange is requested may be among those selected for redemption; and
provided further that no Bearer Security delivered in exchange for a portion of
a permanent global Security shall be mailed or otherwise delivered to any
location in the United States. If a Registered Security is issued in exchange
for any portion of a permanent global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Registered Security, but will be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such
permanent global Security is payable in accordance with the provisions of this
Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Issuer or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
Except as otherwise provided in or pursuant to this Indenture, the
Issuer or the Trustee, as applicable, shall not be required (i) to issue,
register the transfer of or exchange any Security if such Security may be among
those selected for redemption during a period beginning at the opening of
business 15 days before selection of the Securities to be redeemed under
Section 1103 and ending at the close of business on (A) if such Securities are
issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption and (B) if such Securities are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities
and there is no publication, the mailing of the relevant notice of redemption,
or (ii) to register the transfer of or exchange any Registered Security so
selected for redemption in whole or in part, except, in the
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case of any Registered Security to be redeemed in part, the portion thereof not
to be redeemed, or (iii) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be exchanged for a Registered
Security of that series and like tenor, provided that such Registered Security
shall be simultaneously surrendered for redemption, or (iv) to issue, register
the transfer of or exchange any Security which has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If
any mutilated Security or a Security with a mutilated coupon appertaining to it
is surrendered to the Trustee or the Issuer, together with, in proper cases,
such security or indemnity as may be required by the Issuer or the Trustee to
save each of them or any agent of either of them harmless, the Issuer shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and principal amount, containing identical
terms and provisions and bearing a number not contemporaneously outstanding,
with coupons corresponding to the coupons, if any, appertaining to the
surrendered Security.
If there shall be delivered to the Issuer and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Issuer or the Trustee that such Security or coupon
has been acquired by a bona fide purchaser, the Issuer shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the Issuer in its discretion may, instead
of issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium, if any),
and interest on and any Additional Amounts with respect to, Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest in Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security under this Section, the Issuer
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
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Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Issuer, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented, are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS RESERVED. Except
as otherwise specified with respect to a series of Securities in accordance
with the provisions of Section 301, interest on and Additional Amounts with
respect to any Registered Security that is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest at the
office or agency of the Issuer maintained for such purpose pursuant to Section
1002; provided, however, that each installment of interest on any Registered
Security may at the Issuer's option be paid by (i) mailing a check for such
interest, payable to or upon the written order of the Person entitled thereto
pursuant to Section 308, to the address of such Person as it appears on the
Security Register or (ii) transfer to an account maintained by the payee
located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest may be made, in the case
of a Bearer Security, by transfer to an account maintained by the payee with a
bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case
may be, with respect to that portion of such permanent global Security held for
its account by Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next
succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
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Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, any interest on any
Registered Security of any series that is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Issuer, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Issuer may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Issuer shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the proposed
payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Issuer shall
deposit with the Trustee an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies
in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series) equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as provided in this
clause. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Issuer of such Special Record Date and, in the name and at the
expense of the Issuer, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first class postage prepaid, to each Holder of Registered
Securities of such series at his address as it appears in the Security
Register not less than 10 days prior to such Special Record Date. The
Trustee may, in its discretion, in the name and at the expense of the
Issuer, cause a similar notice to be published at least once in an
Authorized Newspaper in each Place of Payment, but such publications
shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefore having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2). In case a Bearer Security of
any series is surrendered at the office or agency in a Place of
Payment for such series in exchange for a Registered Security of such
series after the close of business at such office or agency on any
Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon
relating to such
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proposed date of payment and Defaulted Interest will not be payable on
such proposed date of payment in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
(2) The Issuer may make payment of any Defaulted Interest
on the Registered Securities of any series in any other lawful manner
not inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Issuer to the
Trustee of the proposed payment pursuant to this clause, such manner
of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS. Prior to due presentment of a
Registered Security for registration of transfer, the Issuer, the Trustee and
any agent of the Issuer or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any), and (subject to
Sections 305 and 307) interest on and any Additional Amounts with respect to
such Registered Security and for all other purposes whatsoever, whether or not
such Registered Security be overdue, and neither the Issuer, the Trustee nor
any agent of the Issuer or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Issuer, the Trustee and any agent of the Issuer or
the Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving any payment with respect to payment thereof or on account thereof and
for all other purposes whatsoever, whether or not any payment with respect to
such Security or coupon be overdue, and neither the Issuer, the Trustee nor any
agent of the Issuer or the Trustee shall be affected by notice to the contrary.
No Holder of any beneficial interest in any global Security held on
its behalf by a depositary shall have any rights under this Indenture with
respect to such global Security, and such depositary may be treated by the
Issuer, the Trustee, and any agent of the Issuer or the Trustee as the owner of
such global Security for all purposes whatsoever. None of the Issuer, the
Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Security in
global form or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
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Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Issuer, the Trustee, or any agent of the
Issuer or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depository, as a Holder, with respect
to such global Security or impair, as between such depository and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depository (other its
nominee) as Holder of such global Security.
SECTION 309. CANCELLATION. All Securities and coupons surrendered
for payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly canceled by it;
provided, however, where the Place of Payment is located outside of the United
States, the Paying Agent at such Place of Payment may cancel the Securities
surrendered to it for such purposes prior to delivering the Securities to the
Trustee. The Issuer may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Issuer may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Issuer has not
issued and sold, and all Securities so delivered shall be promptly canceled by
the Trustee. If the Issuer shall so acquire any of the Securities, however,
such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. Canceled
Securities and coupons held by the Trustee shall be destroyed by the Trustee
and the Trustee shall deliver a certificate of such destruction to the Issuer,
unless by an Issuer Order the Issuer directs their return to it.
SECTION 310. COMPUTATION OF INTEREST. Except as otherwise specified
as contemplated by Section 301 with respect to Securities of any series,
interest on the Securities shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall upon Issuer Request cease to be of further effect with respect to any
series of Securities specified in such Issuer Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1012), and the Trustee, upon receipt of an
Issuer Order, and at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when
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(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) appertaining to Bearer
Securities surrendered in exchange for Registered Securities
and maturing after such exchange, whose surrender is not
required or has been waived as provided in Section 305, (ii)
Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons of
such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from
such Trust, as provided in Section 1003) have been delivered
to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Issuer, are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount in
the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of
such series are payable, sufficient to pay and discharge the
entire indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, and any
Additional Amounts with respect thereto, to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Issuer has paid or caused to be paid all other
sums payable hereunder by the Issuer; and
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(3) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee and any predecessor trustee under
Section 606, the obligations of the Issuer to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the
Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
SECTION 402. APPLICATION OF TRUST FUNDS. Subject to the provisions
of the last paragraph of Section 1003, all money and Government Obligations
deposited with the Trustee pursuant to Section 401 or Article 14 shall be held
in trust and applied by it, in accordance with the provisions of the
Securities, the coupons and this Indenture, to the payment, either directly or
through any Paying Agent (including the Issuer acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any), and any interest and Additional Amounts for whose
payment such money has or Government Obligations have been deposited with or
received by the Trustee, but such money and Government Obligations need not be
segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT. "Event of Default," wherever used
herein with respect to any particular series of Securities, means any one of
the following events (whatever the reason for such Event of Default and whether
or not it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) unless such event is
specifically deleted or modified in or pursuant to the supplemental indenture,
Board Resolution or Officers' Certificate establishing the terms of such series
pursuant to this Indenture:
(1) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Security of that series
or of any coupon appertaining thereto, when such interest or
Additional Amounts or coupon becomes due and payable, and continuance
of such default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series when it becomes due
and payable at its Maturity; or
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(3) default in the deposit of any sinking fund payment,
when and as due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Issuer in this Indenture with respect to
any Security of that series (other than a covenant or warranty a
default in the performance or the breach of which is elsewhere in this
Section specifically dealt with), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Issuer by the Trustee or to the
Issuer and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) a default under any evidence of Recourse Indebtedness
of the Issuer, or under any mortgage, indenture or other instrument of
the Issuer (including a default with respect to Securities of any
series other than that series) under which there may be issued or by
which there may be secured any Recourse Indebtedness of the Issuer (or
by any Subsidiary, the repayment of which the Issuer has guaranteed or
for which the Issuer is directly responsible or liable as obligor or
guarantor), whether such indebtedness now exists or shall hereafter be
created, which default shall constitute a failure to pay an aggregate
principal amount exceeding $5,000,000 of such indebtedness when due
and payable after the expiration of any applicable grace period with
respect thereto and shall have resulted in such indebtedness in an
aggregate principal amount exceeding $5,000,000 becoming or being
declared due and payable prior to the date on which it would otherwise
have become due and payable, without such indebtedness having been
discharged, or such acceleration having been rescinded or annulled,
within a period of 10 days after there shall have been given, by
registered or certified mail, to the Issuer by the Trustee or to the
Issuer and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series of a written
notice specifying such default and requiring the Issuer to cause such
indebtedness to be discharged or cause such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; or
(6) the Issuer or any Significant Subsidiary pursuant to
or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a Custodian of
it or for all or substantially all of its property; or
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(D) makes a general assignment for the benefit of
its creditors; or
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Issuer or any
Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of the Issuer or any
Significant Subsidiary or for all or substantially all of
either of its property, or
(C) orders the liquidation of the Issuer or any
Significant Subsidiary,
and the order or decree remains unstayed and in effect for 90 days; or
(8) any other Event of Default provided in or pursuant to
this Indenture with respect to Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means title 11, U.S.
Code or any similar Federal or state law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If
an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities of
that series to be due and payable immediately, by a notice in writing to the
Issuer (and to the Trustee if given, or such lesser amount as may be provided
for in the Securities of such series, by the Holders), and upon any such
declaration such principal or such lesser amount shall become immediately due
and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of not less than a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Issuer and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Issuer has paid or deposited with the Trustee a
sum sufficient to pay in the currency or currency unit or composite
currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series):
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(A) all overdue installments of interest on and
any Additional Amounts payable in respect of all Outstanding
Securities of that series and any related coupons,
(B) the principal of (and premium, if any, on)
any Outstanding Securities of that series which have become
due otherwise than by such declaration of acceleration and
interest thereon and any Additional Amounts with respect
thereto at the rate or rates borne by or provided for in such
Securities,
(C) to the extent that payment of such interest
or Additional Amounts is lawful, interest upon overdue
installments of interest and any Additional Amounts at the
rate or rates borne by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of
that series, other than the nonpayment of the principal of (or
premium, if any) or interest on, and any Additional Amounts with
respect to Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Issuer covenants that if:
(1) default is made in the payment of any installment of
interest or Additional Amounts, if any, on any Security of any series
and any related coupon when such interest or Additional Amount becomes
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security of any series at its Maturity,
then the Issuer will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest and Additional Amounts, with interest upon any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installments of
interest or Additional Amounts, if any, at the rate or rates borne by or
provided for in such Securities, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of
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collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Issuer or any other obligor upon such Securities and any related
coupons and collect the monies adjudged or decreed to be payable in the manner
provided by law out of the property of the Issuer or any other obligor upon
such Securities and any related coupons wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein or therein, or to enforce any
other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Issuer or any other obligor upon the Securities or
the property of the Issuer or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities of any series
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
on the Issuer for the payment of overdue principal, premium, if any, or
interest or Additional Amounts) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or
such lesser amount as may be provided for in the Securities of
such series, of principal (and premium, if any) and interest
and Additional Amounts, if any, owing and unpaid in respect of
the Securities and any related coupons and to file such other
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and
(ii) to collect and receive any monies of other property
payable or deliverable on any such claims and to distribute
the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of the Securities of such series and coupons to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount
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due to it for the reasonable compensation, expenses, disbursements and advances
of the Trustee and any predecessor Trustee, their agents and counsel, and any
other amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS. All rights of action and claims under this Indenture or
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED. Any money collected by
the Trustee pursuant to this Article shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution of
such money on account of principal (or premium, if any) or interest and any
Additional Amounts, upon presentation of the Securities or coupons, or both, as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and coupons for principal (and premium, if any) and
interest and any Additional Amounts payable, in respect of which or
for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the aggregate
amounts due and payable on such Securities and coupons for principal
(and premium, if any), interest and Additional Amounts, respectively;
and
THIRD: The balance, if any, to the Issuer.
SECTION 507: LIMITATION ON SUITS. No Holder of any Security of any
series or any related coupon shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless:
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(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM, IF ANY, INTEREST AND ADDITIONAL AMOUNTS. Notwithstanding any other
provision in this Indenture, the Holder of any Security or coupon shall have
the right which is absolute and unconditional to receive payment of the
principal of (and premium, if any) and (subject to Sections 305 and 307)
interest on, and any Additional Amounts in respect of, such Security or payment
of such coupon on the respective Stated Maturity or Maturities specified in
such Security or coupon (or, in the case of redemption, on the Redemption Date
or, in the case of repayment on the Repayment Date) and to institute suit for
the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or
any Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, the Issuer, the Trustee and the
Holders of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder and
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thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to each
Holder of Securities or coupons is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER. No delay or omission of
the Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to any
Holder may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by such Holder of Securities or coupons, as the
case may be.
SECTION 512. CONTROL BY HOLDERS OF SECURITIES. The Holders of not
less than a majority in principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Securities of such series
and any related coupons, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or with the Securities of any series,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unduly prejudicial to the Holders of
Securities of such series not joining therein.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on or Additional Amounts payable in respect of any Security
of such series or any related coupons, or
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(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS. The Issuer
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 515. UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of any undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in such
suit having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply
to any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 25% in principal amount of
the Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
or Additional Amounts, if any on any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date or, in the case of repayment, on or after the
Repayment Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS. Within 90 days after the occurrence
of any default hereunder with respect to the Securities of any series, the
Trustee shall transmit in the manner and to the extent provided in TIA Section
313(c), notice of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; provided, however, that, except in the
case of a default in the payment of the principal of (or premium, if any) or
interest on
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or any Additional Amounts with respect to any Security of such series, or in
the payment of any sinking fund installment with respect to the Securities of
such series, the Trustee shall be protected in withholding such notice if and
so long as Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the best interests of the Holders of the
Securities and coupons of such series; and provided further that in the case of
any default or breach of the character specified in Section 501(4) with respect
to the Securities and coupons of such series, no such notice to Holders shall
be given until at least 60 days after the occurrence thereof. For the purpose
of this Section, the term "default" means any event which is, or after notice
or lapse of time or both would become, an Event of Default with respect to the
Securities of such series.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of
TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(2) any request or direction of the Issuer mentioned
herein shall be sufficiently evidenced by an Issuer Request or Issuer
Order (other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Trustees may be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of any series
or any related coupons pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
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(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Issuer, personally or by agent or attorney
following reasonable notice to the Issuer;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or counsel and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or counsel
appointed with due care by it hereunder; and
(8) subject to the provisions of Section 602 hereof and
Sections 315(a) through 315(d) of the Trust Indenture Act, the Trustee
shall not be charged with knowledge of any Event of Default described
in Section 501(4), (5), (6) or (7) hereof unless a Responsible Officer
of the Trustee shall have actual knowledge of such Event of Default.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the Issuer, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the Issuer
are true and correct, subject to the qualifications set forth therein. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Issuer of Securities or the proceeds thereof.
SECTION 604. MAY HOLD SECURITIES. The Trustee, any Paying Agent,
Security Registrar, Authenticating Agent or any other agent of the Trustee or
the Issuer, in its individual or
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any other capacity, may become the owner or pledgee of Securities and coupons
and, subject to TIA Sections 310(b) and 311 of the TIA, may otherwise deal with
the Issuer with the same rights it would have if it were not Trustee, Paying
Agent, Security Registrar, Authenticating Agent or such other agent.
SECTION 605. MONEY HELD IN TRUST. Except as provided in Section 402
and Section 1003, money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Issuer.
SECTION 606. COMPENSATION AND REIMBURSEMENT. The Issuer agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
(3) to indemnify each of the Trustee and any predecessor
Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its own part,
arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(6) or Section 501(7), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the Issuer under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium, if any) or interest or
any Additional Amounts on particular Securities or any related coupons.
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The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTERESTS. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or the
requirements of Federal, state, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a)
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Issuer. If any instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee
and to the Issuer.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions
of TIA Section 310(b) after written request therefor by the Issuer or
by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
607 and shall fail to resign after written request therefor by the
Issuer or by any Holder of a Security who has been a bona fide Holder
of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent, or a receiver of the Trustee or
of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
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then, in any such case, (i) the Issuer by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similar situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities of such series and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Issuer, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one
or more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 609. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Issuer and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 609, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Issuer. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Issuer or the Holders of Securities and
accepted appointment in the manner provided in Section 609, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to Securities of such series.
(f) The Issuer shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In case of
the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and deliver
to the Issuer and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Issuer or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver
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to such successor Trustee all property and money held by such retiring Trustee
hereunder, subject nevertheless to its claim, if any, provided for in Section
606.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the securities of one or more (but not all) series, the Issuer,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental
hereto, pursuant to Article Nine hereof, wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (3) shall add to or change
any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustee's co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Issuer or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Issuer shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such Corporation shall be otherwise qualified and eligible under this
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Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall
have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT. At any time when
any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series or pursuant to Section 306 issued upon original
issue, exchange, registration of transfer or partial redemption or repayment
thereof, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to the Issuer.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certification of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Issuer and shall
at all times be a bank or trust company or corporation organized and doing
business and in good standing under the laws of the United States of America or
of any State or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authorities. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such Corporation shall be otherwise eligible
under this
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Section, without the execution or filing of any paper or further act on the
part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Issuer. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Issuer. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provision of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Issuer and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth
in Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provision of this Section.
The Issuer agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
(TRUSTEE)
as Trustee
By:
-------------------------------
as Authenticating Agent
By:
-------------------------------
Authorized Signatory
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If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Issuer wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Issuer), shall
appoint in accordance with this Section an Authenticating Agent having an
office in a Place of Payment designated by the Issuer with respect to such
series of Securities.
ARTICLE SEVEN
HOLDERS' LIST AND REPORTS BY TRUSTEE AND ISSUER
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS. Every
Holder of Securities or coupons, by receiving and holding the same, agrees with
the Issuer and the Trustee that neither the Issuer nor the Trustee nor an
Authenticating Agent nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities in accordance with TIA Section
312(c), regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under TIA Section 312(b).
SECTION 702. REPORTS BY TRUSTEE.
(1) Within 60 days after December 31 of each year
commencing with the first December 31 following the first
issuance of Securities pursuant to Section 301, if required by
Section 313(a) of the Trust Indenture Act, the Trustee shall
transmit, pursuant to Section 313(c) of the Trust Indenture
Act, a brief report dated as of such December 31 with respect
to any of the events specified in said Section 313(a) which
may have occurred since the later of the immediately preceding
December 31 and the date of this Indenture.
(2) The Trustee shall transmit the reports
required by Section 313(a) of the Trust Indenture Act at the
times specified therein.
(3) Reports pursuant to this Section shall be
transmitted in the manner and to the Persons required by
Sections 313(c) and 313(d) of the Trust Indenture Act.
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SECTION 703. REPORTS BY ISSUER. The Issuer will, pursuant to TIA
Section 314(a):
(1) file with the Trustee, within 15 days after
the Issuer is required to file the same with the Commission,
copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Issuer may be required to
file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; or, if the Issuer is not required
to file information, documents or reports pursuant to either
of said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Exchange
Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to
time in such rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to
time by the Commission, such additional information, documents
and reports with respect to compliance by the Issuer with the
conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit by mail to the Holders of
Securities, within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in TIA
Section 313(c), such summaries of any information, documents
and reports required to be filed by the Issuer pursuant to
Section 1010 and paragraphs (1) and (2) of this Section as may
be required by rules and regulations prescribed from time to
time by the Commission.
SECTION 704. ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS. In accordance with TIA Section 312(a), the Issuer will furnish or
cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular Record
Date for interest of each series of Securities, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date, or if
there is no Regular Record Date for interest for such series of Securities,
semi-annually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
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(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Issuer of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished,
provided however, that, so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. CONSOLIDATIONS AND MERGERS OF ISSUER AND SALES, LEASES
AND CONVEYANCE PERMITTED SUBJECT TO CERTAIN CONDITIONS. The Issuer may
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into, any other Corporation, provided that (i) the
Issuer shall be the continuing Corporation, or the successor Corporation (if
other than the Issuer) formed by or resulting from any such consolidation or
merger or which shall have received the transfer of such assets shall expressly
assume the payment of the principal of (and premium, if any) and interest on
all the Securities, and the due and punctual performance and observance of all
of the covenants and conditions in this Indenture; and (ii) immediately after
giving effect to such transaction and treating any indebtedness which becomes
an obligation of the Issuer or any Subsidiary as a result thereof as having
been incurred by the Issuer or such Subsidiary at the time of such transaction,
no Event of Default, and no event which, after notice or the lapse of time, or
both, would become such an Event of Default, shall have occurred and be
continuing.
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of
any such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor Corporation, such successor Corporation shall
succeed to and be substituted for the Issuer, with the same effect as if it had
been named herein as the party of the first part, and the predecessor
Corporation, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor Corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Issuer, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered to the
Trustee; and, upon the order of such successor Corporation, instead of the
Issuer, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the
officers of the Issuer to the Trustee for authentication, and any Securities
which such successor Corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as
the Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date of
the execution hereof.
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In case of any such consolidation, merger, sale, lease or conveyance,
such charges in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL. Any
consolidation, merger, sale, lease or conveyance permitted under Section 801 is
also subject to the condition that the Trustee receive an Officers' Certificate
and an Opinion of Counsel to the effect that any such consolidation, merger,
sale, lease or conveyance, and the assumption by any successor corporation,
complies with the provisions of this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or coupons, the Issuer, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Issuer and the assumption by any such successor of the covenants of
the Issuer herein and in the Securities; or
(2) to add to the covenants of the Issuer for the benefit
of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Issuer; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and if such
Events of Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series); provided, however,
that in respect of any such additional Events of Default such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of
a majority in aggregate principal amount of that or those series of
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Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on or any Additional Amounts
with respect to Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form, provided that any such action shall
not adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series and any related coupons as permitted by Sections 201 and 301;
or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture, provided such
provisions shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(10) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403, provided that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in
any material respect.
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SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With
the consent of the Holders of not less than a majority in principal amount of
all Outstanding Securities affected by such supplemental indenture, by Act of
said Holders delivered to the Issuer and the Trustee, the Issuer, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities and any related coupons under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or
premium, if any, on) or any installment of principal of or interest on
or any Additional Amounts with respect to, any Security, or reduce the
principal amount thereof or the rate or amount of interest thereon or
any Additional Amounts payable in respect thereof, or any premium
payable upon the redemption thereof, or change any obligation of the
Issuer to pay Additional Amounts pursuant to Section 1012 (except as
contemplated by Section 801(1) and permitted by Section 901(1), or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or the
amount thereof provable in bankruptcy pursuant to Section 504, or
adversely affect any right of repayment at the option of the Holder of
any Security, or change any Place of Payment where, or the currency or
currencies, currency unit or units or composite currency or currencies
in which the principal of, any premium or interest on, or any
Additional Amounts with respect to any Security is payable, or impair
the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption or
repayment at the option of the Holder, on or after the Redemption Date
or the Repayment Date, as the case may be), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver with respect to such series (or
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1504 for quorum or
voting, or
(3) modify any of the provisions of this Section, Section 513
or Section 1013, except to increase the required percentage to effect
such action or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. As a condition to
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to TIA Section 315) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements
of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Issuer shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Issuer, to any such supplemental indenture may be prepared and
executed by the Issuer and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES. Promptly after the
execution by the Issuer and the Trustee of any supplemental indenture pursuant
to the provisions of Section 902, the Issuer shall give notice thereof to the
Holders of each Outstanding Security affected, in the manner provided for in
Section 106, setting forth in general terms the substance of such supplemental
indenture.
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ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, INTEREST AND
ADDITIONAL AMOUNTS. The Issuer covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest on and any Additional Amounts
payable in respect of the Securities of that series in accordance with the
terms of such series of Securities, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, any interest due on and any Additional
Amounts payable in respect of any Bearer Securities on or before Maturity,
other than Additional Amounts, if any, payable as provided in Section 1012 in
respect of principal of (or premium, if any, on) such a Security), shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
Unless otherwise specified with respect to Securities of any series pursuant to
Section 301, at the option of the Issuer, all payments of principal may be paid
by check to the registered Holder of the Registered Security or other person
entitled thereto against surrender of such Security.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. If Securities of a
series are issuable only as Registered Securities, the Issuer shall maintain in
each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Issuer in respect of the
Securities of that series and this Indenture may be served. If Securities of a
series are issuable as Bearer Securities, the Issuer will maintain: (A) in the
Borough of Manhattan, New York City, an office or agency where any Securities
of that series may be presented or surrendered for payment, where any
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange, where notices
and demands to or upon the Issuer in respect of the Securities of that series
and this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise); (B)
subject to any laws or regulations applicable thereto, in a Place of Payment
for that series which is located outside the United States, an office or agency
where Securities of that series and related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts payable on
Securities of that series pursuant to Section 1012), provided, however, that if
the Securities of that series are listed on the Luxembourg Stock Exchange or
any other stock exchange located outside the United States and such stock
exchange shall so require, the Issuer will maintain a Paying Agent for the
Securities of that series in Luxembourg or any other required city located
outside the United States, as the case may be, so long as the Securities of
that series are listed on such exchange and (C) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series located
outside the United States an office or agency where any
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Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Issuer in respect of the Securities of
that series and this Indenture may be served. The Issuer will give prompt
written notice to the Trustee of the location, and any change in the location,
of each such office or agency. If at any time the Issuer shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of that series and the related coupons may be
presented and surrendered for payment (including payment of any Additional
Amounts payable on Bearer Securities of that series pursuant to Section 1012)
at the offices specified in the Security in London, England, and the Issuer
hereby appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands, and the Issuer hereby appoints the Trustee its
agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency
of the Issuer in the United States or by check mailed to any address in the
United States or by transfer to an account maintained with a bank located in
the United States; provided, however, that, if amounts owing with respect to
any Bearer Securities of a series are payable in Dollars, payment of principal
of and any premium and interest on any Bearer Security (including any
Additional Amounts payable on Securities of such series pursuant to Section
1012) shall be made at the office of the designated agent of the Issuer's
Paying Agent in the Borough of Manhattan, New York City, if (but only if)
payment in Dollars of the full amount of such principal, premium, interest or
Additional Amounts, as the case may be, at all offices or agencies outside the
United States maintained for the purpose by the Issuer in accordance with this
Indenture, is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Issuer may from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designations; provided, however, that no such designations or rescission
shall in any manner relieve the Issuer of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Issuer will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. Unless otherwise specified with
respect to any Securities pursuant to Section 301 with respect to a series of
Securities, the Issuer hereby designates as a Place of Payment for each series
of Securities the office or agency of the Issuer in the Borough of Manhattan,
New York City, and initially appoints the Trustee at its Corporate Trust Office
as Paying Agent in such city and as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be
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payable in a Foreign Currency, or so long as it is required under any other
provision of the Indenture, then the Issuer will maintain with respect to each
such series of Securities, or as so required, at least one exchange rate agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. If
the Issuer shall at any time act as its own Paying Agent with respect to any
series of any Securities and any related coupons, it will, on or before each
due date of the principal of (and premium, if any), or interest on or
Additional Amounts in respect of, any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum in the currency or currencies, currency unit or units or composite currency
or currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
sufficient to pay the principal (and premium, if any) or interest or Additional
Amounts so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, before each due date of
the principal of (and premium, if any), or interest on or Additional Amounts in
respect of, any Securities of that series, deposit with a Paying Agent a sum
(in the currency or currencies, currency unit or units or composite currency or
currencies described in the preceding paragraph) sufficient to pay the
principal (and premium, if any) or interest or Additional Amounts, so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest or Additional Amounts and (unless such
Paying Agent is the Trustee) the Issuer will promptly notify the Trustee of its
action or failure so to act.
The Issuer will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of principal of
(and premium, if any) or interest on Securities or Additional Amounts
in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Issuer (or
any other obligor upon the Securities) in the making of any such
payment of principal (and premium, if any) or interest or Additional
Amounts; and
(3) at any time during the continuance of any such default
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
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The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuer or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Issuer or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Except as otherwise provided in the Securities of any series, any
money deposited with the Trustee or any Paying Agent, or then held by the
Issuer, in trust for the payment of the principal of (and premium, if any) or
interest on, or any Additional Amounts in respect of, any Security of any
series or any related coupon and remaining unclaimed for two years after such
principal (and premium, if any), interest or Additional Amounts have become due
and payable shall be paid to the Issuer upon Issuer Request or (if then held by
the Issuer) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Issuer for payment of such principal of (and premium, if any) or interest on,
or any Additional Amounts in respect of, any Security, without interest
thereon, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Issuer as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Issuer cause to be published once, in an Authorized Newspaper, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Issuer.
SECTION 1004. [intentionally omitted]
SECTION 1005. [intentionally omitted]
SECTION 1006. EXISTENCE. Subject to Article Eight, the Issuer will
do or cause to be done all things necessary to preserve and keep in full force
and effect its existence, rights and franchises; provided, however, that the
Issuer shall not be required to preserve any right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Issuer and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1007. MAINTENANCE OF PROPERTIES. The Issuer will cause all
of its material properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Issuer may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Issuer or any Subsidiary from selling or otherwise
disposing of for value any of their properties in the ordinary course of
business.
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SECTION 1008. INSURANCE. The Issuer will, and will cause each of its
Subsidiaries to, maintain insurance coverage on all of its insurable property
against loss or damage at least equal to their then full insurable value by
financially sound and reputable insurance companies.
SECTION 1009. PAYMENT OF TAXES AND OTHER CLAIMS. The Issuer will pay
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon the income, profits or property of
the Issuer or any Subsidiary, and (ii) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a lien upon the property of
the Issuer or any Subsidiary; provided, however, that the Issuer shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1010. PROVISION OF FINANCIAL INFORMATION. Whether or not the
Issuer is subject to Section 13 or 15(d) of the Exchange Act and for so long as
any Securities are outstanding, the Issuer will, to the extent permitted under
the Exchange Act, file with the Commission the annual reports, quarterly
reports and other documents which the Issuer would have been required to file
with the Commission pursuant to such Section 13 or 15(d) (the "Financial
Statements") if the Issuer were so subject, such documents to be filed with the
Commission on or prior to the respective dates (the "Required Filing Dates") by
which the Issuer would have been required so to file such documents if the
Issuer were so subject.
The Issuer will also in any event (x) within 15 days of each Required
Filing Date (i) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, without cost to such Holders, copies of the
annual reports and quarterly reports which the Issuer would have been required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
if the Issuer were subject to such Sections, and (ii) file with the Trustee
copies of the annual reports, quarterly reports and other documents which the
Issuer would have been required to file with the Commission pursuant to Section
13 or 15(d) of the Exchange Act if the Issuer were subject to such Sections,
and (y) if filing such documents by the Issuer with the Commission is not
permitted under the Exchange Act, promptly upon written request and payment of
the reasonable cost of duplication and delivery, supply copies of such
documents to any prospective Holder.
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SECTION 1011. STATEMENT AS TO COMPLIANCE. The Issuer shall deliver
to the Trustee, within 120 days after the end of each fiscal year, a written
statement (which need not be contained in or accompanied by an Officers'
Certificate) signed by the principal executive officer, the principal financial
officer or the principal accounting officer of the General Partner acting in
its capacity as the sole general partner of the Issuer, stating that:
(1) a review of the activities of the Issuer during such
year and of its performance under this Indenture has been made under
his or her supervision, and
(2) to the best of his or her knowledge, based on such
review, (a) the Issuer has complied with all the conditions and
covenants imposed on it under this Indenture throughout such year, or,
if there has been a default in the fulfillment of any such condition
or covenant, specifying each such default known to him or her and the
nature and status thereof, and (b) no event has occurred and is
continuing which is, or after notice or lapse of time or both would
become, an Event of Default, or, if such an event has occurred and is
continuing, specifying each such event known to him and the nature and
status thereof.
SECTION 1012. ADDITIONAL AMOUNTS. If any Securities of a series
provide for the payment of Additional Amounts, the Issuer will pay to the
Holder of any Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by Section 301.
Whenever in this Indenture there is mentioned, in any context except in the
case of Section 502(1), the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or payment of any
related coupon or the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be deemed to include mention of the
payment of Additional Amounts provided by the terms of such series established
pursuant to Section 301 to the extent that, in such context, Additional Amounts
are, were or would be payable in respect thereof pursuant to such terms and
express mention of the payment of Additional Amounts (if applicable) in any
provisions hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the Issuer shall
furnish to the Trustee and the Paying Agent, if other than the Trustee, an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
or any related coupons who are not United States persons without withholding
for or on account of any tax, assessment or other governmental charge described
in the Securities of the series. If any such withholding shall be required,
then
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such Officers' Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities of that
series or related coupons and the Issuer will pay to the Trustee or such Paying
Agent the Additional Amounts required by the terms of such Securities. If the
Trustee or any Paying Agent, as the case may be, shall not so receive the
above-mentioned certificate, then the Trustee or such Paying Agent shall be
entitled (i) to assume that no such withholding or deduction is required with
respect to any payment of principal or interest with respect to any Securities
of a series or related coupons until it shall have received a certificate
advising otherwise and (ii) to make all payments of principal and interest with
respect to the Securities of a series or related coupons without withholding or
deductions until otherwise advised. The Issuer covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any
of them or in reliance on any Officers' Certificate furnished pursuant to this
Section or in reliance on the Issuer's not furnishing such an Officers'
Certificate.
SECTION 1013. WAIVER OF CERTAIN COVENANTS. The Issuer may omit in
any particular instance to comply with any term, provision or condition set
forth in Sections 1004 to 1011, inclusive, if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
Outstanding Securities of such series, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Issuer and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE. Securities of any series
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of
the Issuer to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Issuer of
less than all of the Securities of any series, the Issuer shall, at least 45
days prior to the giving of the notice of redemption in Section 1104 (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series
to be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption
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provided in the terms of such Securities or elsewhere in this Indenture, the
Issuer shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. If
less than all the Securities of any series issued on the same day with the same
terms are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series issued on such date with the
same terms not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Issuer and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION. Notice of redemption shall be
given in the manner provided in Section 106, not less than 30 days nor more
than 60 days prior to the Redemption Date, unless a shorter period is specified
by the terms of such series established pursuant to Section 301, to each Holder
of Securities to be redeemed. Failure to give such notice in the manner herein
provided to the Holder of any Security designated for redemption as a whole or
in part, or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other such Security or
portion thereof.
Any notice that is mailed to the Holders of Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, accrued interest to the
Redemption Date payable as provided in Section 1106, if any, and
Additional Amounts, if any,
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(3) if less than all Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the holder
will receive, without a charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that on the Redemption Date the Redemption Price and
accrued interest to the Redemption Date payable as provided in Section
1106, if any, will become due and payable upon each such Security, or
the portion thereof, to be redeemed and, if applicable, that interest
thereon shall cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date, are
to be surrendered for payment of the Redemption Price and accrued
interest, if any,
(7) that the redemption is for a sinking fund, if such is
the case,
(8) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption
must be accompanied by all coupons maturing subsequent to the date
fixed for redemption or the amount of any such missing coupon or
coupons will be deducted from the Redemption Price, unless security or
indemnity satisfactory to the Issuer, the Trustee for such series and
any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be redeemed,
and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on this Redemption Date pursuant
to Section 305 or otherwise, the last date, as determined by the
Issuer, on which such exchanges may be made,
(10) the CUSIP number or the Euroclear or CEDEL reference
numbers of such Security, if any, and
(11) if applicable, that a Holder of Securities who
desires to convert Securities for redemption must satisfy the
requirements for conversion contained in such Securities, the then
existing conversion price or rate, and the date and time when the
option to convert shall expire.
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
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Notice of redemption of Securities to be redeemed shall be given by
the Issuer or, at the Issuer's request, by the Trustee in the name and at the
expense of the Issuer.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. At least one Business Day
prior to any Redemption Date, the Issuer shall deposit with the Trustee or with
a Paying Agent (or, if the Issuer is acting as its own Paying Agent, which it
may not do in the case of a sinking fund payment under Article Twelve,
segregate and hold in trust as provided in Section 1003) an amount of money in
the currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
sufficient to pay on the Redemption Date the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on
and Additional Amounts with respect thereto, all the Securities or portions
thereof which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Issuer shall default
in the payment of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, cease to bear interest and the
coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender
of any such Security for redemption in accordance with said notice, together
with all coupons, if any, appertaining thereto maturing after the Redemption
Date, such Security shall be paid by the Issuer at the Redemption Price,
together with accrued interest and Additional Amounts, if any, to the
Redemption Date; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons
for such interest; and provided further that, except as otherwise provided,
installments of interest on Registered Securities whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Issuer and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall
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surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Redemption Price, such
Holder shall be entitled to receive the amount so deducted; provided, however,
that interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located outside the
United States (except as otherwise provided in Section 1002).
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
SECTION 1107. SECURITIES REDEEMED IN PART. Any Registered Security
which is to be redeemed only in part (pursuant to the provisions of this
Article) shall be surrendered at a Place of Payment therefor (with, if the
Issuer or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Issuer and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing) and the
Issuer shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge a new Registered Security or
Securities of the same series, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. If a
Security in global form is so surrendered, the Issuer shall execute, and the
Trustee shall authenticate and deliver to the depositary for such Security in
global form as shall be specified in the Issuer Order with respect thereto to
the Trustee, without service charge, a new Security in global form in a
denomination equal to and in exchange for the unredeemed portion of the
principal of the Security in global form so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of such Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of any
Securities of any series, the cash amount of any mandatory sinking fund payment
may be subject to reduction as provided in Section 1202. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
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SECTION 1202. SATISFACTION OF SINKING FUND PAYMENT WITH SECURITIES.
The Issuer may, in satisfaction of all or any part of any mandatory sinking
fund payment with respect to the Securities of a series, (1) deliver
Outstanding Securities of such series (other than any Securities previously
called for redemption) together in the case of any Bearer Securities of such
series with all unmatured coupons appertaining thereto and (2) apply as a
credit Securities of such series which have been redeemed either at the
election of the Issuer pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities, or which have otherwise been acquired by the Issuer;
provided that such Securities so delivered or applied as a credit have not been
previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the applicable Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. Not less
than 60 days prior to each sinking fund payment date for Securities of any
series, the Issuer will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series) and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 1202, and the optional amount, if any, to be added
in cash to the next ensuing mandatory sinking fund payment, and will also
deliver to the Trustee any Securities to be so delivered and credited. If such
Officers' Certificate shall specify an optional amount to be added in cash to
the next ensuing mandatory sinking fund payment, the Issuer shall thereupon be
obligated to pay the amount therein specified. Not less than 30 days before
each such sinking fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 1103 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Issuer in the manner provided in Section 1104.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE. Repayment of Securities of
any series before their Stated Maturity at the option of Holders thereof shall
be made in accordance with the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to Section
301) in accordance with this Article.
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SECTION 1302. REPAYMENT OF SECURITIES. Securities of any series
subject to repayment in whole or in part at the option of the Holders thereof
will, unless otherwise provided in the terms of such Securities, be repaid at a
price equal to the principal amount thereof, together with interest, if any,
thereon accrued to the Repayment Date specified in or pursuant to terms of such
Securities. The Issuer covenants that at least one Business Day prior to the
Repayment Date it will deposit with the Trustee or with a Paying Agent (or, if
the Issuer is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series) sufficient to pay the
principal (or, if so provided by the terms of the Securities of any series, a
percentage of the principal) of, and (except if the Repayment Date shall be an
Interest Payment Date) accrued interest on, all the Securities or portions
thereof, as the case may be, to be repaid on such date.
SECTION 1303. EXERCISE OF OPTION. Securities of any series subject
to repayment at the option of the Holders thereof will contain an "Option to
Elect Repayment" form on the reverse of such Securities. In order for any
Security to be repaid at the option of the Holder, the Trustee must receive at
the Place of Payment therefor specified in the terms of such Security (or at
such other place or places of which the Issuer shall from time to time notify
the Holders of such Securities) not earlier than 60 days nor later than 30 days
prior to the Repayment Date (1) the Security so providing for such repayment
together with the "Option to Elect Repayment" form on the reverse thereof duly
completed by the Holder (or by the Holder's attorney duly authorized in
writing) or (2) a telegram, telex, facsimile transmission or a letter from a
member of a national securities exchange, or the National Association of
Securities Dealers, Inc., or a commercial bank or trust company in the United
States setting forth the name of the Holder of the Security, the principal
amount of the Security, the principal amount of the Security to be repaid, the
CUSIP number, if any, or a description of the tenor and terms of the Security,
a statement that the option to elect repayment is being exercised thereby and a
guarantee that the Security to be repaid, together with the duly completed form
entitled "Option to Elect Repayment" on the reverse of the Security, will be
received by the Trustee not later than the fifth Business Day after the date of
such telegram, telex, facsimile transmission or letter; provided, however, that
such telegram, telex, facsimile transmission or letter shall only be effective
if such Security and form duly completed are received by the Trustee by such
fifth Business Day. If less than the entire principal amount of such Security
is to be repaid in accordance with the terms of such Security, the principal
amount of such Security to be repaid, in increments of the minimum
denominations for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be
provided by the terms of any Security providing for repayment at the option of
the Holder
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thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Issuer.
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND
PAYABLE. If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Issuer on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Issuer shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by
the Issuer, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable (but without interest thereon,
unless the Issuer shall default in the payment thereof) to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by
the Issuer and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to the
Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made as provided in the preceding sentence, such
Holder shall be entitled to receive the amount so deducted; provided, however,
that interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount (together
with interest, if any, thereon, accrued to such Repayment Date) shall, until
paid, bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
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SECTION 1305. SECURITIES REPAID IN PART. Upon surrender of any
Registered Security which is to be repaid in part only, the Issuer shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Issuer, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so
surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE; ISSUER'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE. If, pursuant to Section 301, provision is
made for either or both of (a) defeasance of the Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this
Article (with such modifications thereto as may be specified pursuant to
Section 301 with respect to any Securities), shall be applicable to such
Securities and any coupons appertaining thereto, and the Issuer may at its
option by Board Resolution, at any time, with respect to such Securities and
any coupons appertaining thereto, elect to have Section 1402 (if applicable) or
Section 1403 (if applicable) be applied to such Outstanding Securities and any
coupons appertaining thereto upon compliance with the conditions set forth
below in this Article.
SECTION 1402. DEFEASANCE AND DISCHARGE. Upon the Issuer's exercise
of the above option applicable to this Section with respect to any Securities
of or within a series, the Issuer shall be deemed to have been discharged from
its obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Issuer shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (A) and (B) below, and to have satisfied all of its
other obligations under such Securities and any coupons appertaining thereto
and this Indenture insofar as such Securities and any coupons appertaining
thereto are concerned (and the Trustee, at the expense of the Issuer, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of such Outstanding Securities and any coupons appertaining
thereto receive, solely from the trust fund described in Section 1404 and as
more fully set forth in such Section, payments in respect of the principal of
(and premium, if any) and interest and Additional Amounts, if any, on such
Securities and any coupons appertaining thereto when such payments are due and
any right of such Holder to exchange such Securities for other Securities, (B)
the Issuer's obligations with respect to such Securities under Sections 305,
306, 1002 and 1003 and with respect to the
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payment of Additional Amounts, if any, on such Securities as contemplated by
Section 1012 (but only to the extent that the Additional Amounts payable with
respect to such Securities exceed the amount deposited in respect of such
Additional Amounts pursuant to Section 1404 below), (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (D) this Article.
Subject to compliance with this Article Fourteen, the Issuer may exercise its
option under this Section notwithstanding the prior exercise of its option
under Section 1403 with respect to such Securities and any coupons appertaining
thereto.
SECTION 1403. COVENANT DEFEASANCE. Upon the Issuer's exercise of the
above option applicable to this Section with respect to any Securities of or
within a series, the Issuer shall be released from its obligations under
Sections 1004 to 1011, inclusive, and, if specified pursuant to Section 301,
its obligations under any other covenant, with respect to such Outstanding
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with any such covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to such Outstanding Securities and
any coupons appertaining thereto, the Issuer may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such Section or such other covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such Section or such other
covenant or by reason of reference in any such Section or such other covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a default or an Event of Default under Section
501(4) or 501(8) or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and such Securities and any coupons
appertaining thereto shall be unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of Section 1402 or Section
1403 to any Outstanding Securities of or within a series and any coupons
appertaining thereto:
(a) The Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 607 who shall agree to comply with the provisions of this Article
Fourteen applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities and any coupons
appertaining thereto, (1) an amount in such currency, currencies or currency
unit in which such Securities and any coupons appertaining thereto are then
specified as payable at Stated Maturity, or (2) Government Obligations
applicable to such Securities and coupons appertaining thereto (determined on
the basis of the currency, currencies or currency unit in which such Securities
and coupons appertaining thereto are then specified as payable at Stated
Maturity) which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than one
day
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before the due date of any payment of principal of (and premium, if any) and
interest, if any, on such Securities and any coupons appertaining thereto,
money in an amount, or (3) a combination thereof, any case, in an amount,
sufficient, without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge, (i) the principal of (and
premium, if any) and interest, if any, on such Outstanding Securities and any
coupons appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest and (ii) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding Securities and
any coupons appertaining thereto on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such Securities
and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Issuer is a party or by
which it is bound.
(c) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to such Securities
and any coupons appertaining thereto shall have occurred and be continuing on
the date of such deposit and, with respect to defeasance only, at any time
during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 1402, the Issuer
shall have delivered to the Trustee an Opinion of Counsel stating that (i) the
Issuer has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the Holders
of such Outstanding Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result of
such defeasance and will not be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such defeasance had not occurred.
(e) In the case of an election under Section 1403, the Issuer
shall have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of such Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred.
(f) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section
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1402 or the covenant defeasance under Section 1403 (as the case may be) have
been complied with.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Issuer in connection therewith pursuant to Section 301.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions of the
last paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons
appertaining thereto shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any coupons appertaining
thereto and this Indenture, to the payment, either directly or through any
Paying Agent (including the Issuer acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become thereon in respect of
principal (and premium, if any) and interest and Additional Amounts, if any,
but such money need not be segregated from other funds except to the extent
required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, in or pursuant to this Indenture or any Security if, after a
deposit referred to in Section 1404(a) has been made, (a) the Holder of a
Security in respect of which such deposit was made is entitled to, and does,
elect pursuant to Section 301 or the terms of such Security to receive payment
in a currency or currency unit other than that in which the deposit pursuant to
Section 1404(a) has been made in respect of such Security, or (b) a Conversion
Event occurs in respect of the Foreign Currency in which the deposit pursuant
to Section 1404(a) has been made, the indebtedness represented by such Security
and any coupons appertaining thereto shall be deemed to have been, and will be,
fully discharged and satisfied through the payment of the principal of (and
premium, if any), and interest, if any, on and Additional Amounts, if any, with
respect to such Security as the same becomes due out of the proceeds yielded by
converting (from time to time as specified below in the case of any such
election) the amount or other property deposited in respect of such Security
into the currency or currency unit in which such Security becomes payable as a
result of such election or Conversion Event based on the applicable market
exchange rate for such currency or currency unit in effect on the second
Business Day prior to each payment date, except, with respect to a Conversion
Event, for such Foreign Currency in effect (as nearly as feasible) at the time
of the Conversion Event.
The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposit
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge
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which by law is for the account of the Holders of such Outstanding Securities
and any coupons appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject to
Section 606, the Trustee shall deliver or pay to the Issuer from time to time
upon Issuer Request any money or Government Obligations (or other property and
any proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting
of Holders of Securities of any series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS. (a) The Trustee
may at any time call a meeting of Holders of Securities of any series for any
purpose specified in Section 1501, to be held at such time and at such place in
the Borough of Manhattan, New York City, or in London as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner provided in
Section 106, not less than 21 nor more than 180 days prior to the date fixed
for the meeting.
(b) In case at any time the Issuer, pursuant to a Board
Resolution, or any Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified
in Section 1501, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have made
the first publication of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Issuer or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine
the time and the place in the Borough of Manhattan, New York City, or in London
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section.
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SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled
to vote at any meeting of Holders of Securities of any series, a Person shall
be (1) a Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders
of one or more Outstanding Securities of such series by such Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Issuer and its counsel.
SECTION 1504. QUORUM; ACTION. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal
amount of the Outstanding Securities of a series, the Persons entitled to vote
such specified percentage in principal amount of the Outstanding Securities of
such series shall constitute a quorum. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall , if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at the reconvening of any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1502(a), except that
such notice need to be given only once not less than five days prior to the
date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of any adjournment meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted by the affirmative vote of the persons
entitled to vote a majority in aggregate principal amount of the Outstanding
Securities represented at such meeting; provided, however, that, except as
limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Securities of that series.
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Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
actions is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage in principal amount of
all Outstanding Securities affected thereby, or of the Holders of such series
and one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made,
given or taken under this Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS. (a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the Person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized
by Section 104 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof specified in
Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been canceled
by the Issuer of by Holders of Securities as provided in Section 1502(b), in
which case the Issuer or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the persons entitled to vote a majority in principal amount of
Outstanding Securities of such series represented at the meeting.
-82-
<PAGE> 92
(c) At any meeting each holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The
vote upon any resolution submitted to any meeting of Holders of Securities of
any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
Series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the fact, setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Issuer and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 1507. EVIDENCE OF ACTION TAKEN BY HOLDERS. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Holders of any or all series may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such specified percentage of Holders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee. Proof and execution of any instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture and (subject
to Article Six) conclusive in favor of the Trustee and the Issuer, if made in
the manner provided in this Article.
-83-
<PAGE> 93
SECTION 1508. PROOF OF EXECUTION OF INSTRUMENTS. Subject to Article
Six, the execution of any instrument by a Holder or his agent or proxy may be
proved in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee.
ARTICLE SIXTEEN
SECURITIES IN FOREIGN CURRENCIES
SECTION 1601. APPLICABILITY OF ARTICLE. Whenever this Indenture
provides for (i) any action by, or the determination of any of the rights of
Holders of Securities of any series in which not all of such Securities are
denominated in the same currency, or (ii) any distribution to Holders of
Securities, in the absence of any provision to the contrary in the form of
Security of any particular series or pursuant to this Indenture or the
Securities, any amount in respect of any Security denominated in a currency
other than Dollars shall be treated for any such action or distribution as that
amount of Dollars that could be obtained for such amount on such reasonable
basis of exchange and as of the record date with respect to Registered
Securities of such series (if any) for such action, determination of rights for
distribution (or, if there shall be no applicable record date, such other date
reasonably proximate to the date of such action, determination of rights or
distribution) as the Issuer may specify in a written notice to the Trustee or,
in the absence of such written notice, as the Trustee may determine.
* * * * * *
-84-
<PAGE> 94
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
POST APARTMENT HOMES, L.P.
By: Post Properties, Inc.
as General Partner
By:
---------------------------------
Name:
Title:
Attest:
- --------------------------------
Title:
SUNTRUST BANK, ATLANTA
as Trustee
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
-85-
<PAGE> 95
STATE OF __________________________________ )
)ss:
COUNTY OF _________________________________ )
On the ____ day of _____________ 1996, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he/she resides at ______________, ______________________, that he/she is
__________________ of POST PROPERTIES, INC., the general partner of POST
APARTMENT HOMES, L.P., one of the parties described in and which executed the
foregoing instrument, and that he/she signed his/her name thereto by authority
of the Board of Directors.
{Notarial Seal}
-------------------------
Notary Public
COMMISSION EXPIRES
STATE OF ______________________ )
)ss:
COUNTY OF _____________________ )
On the __ day of ______________ 1996, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
he/she resides at __________, that he/she signed his/her name thereto by
authority of the Board of directors.
{Notarial Seal}
-------------------------
Notary Public
COMMISSION EXPIRES
-86-
<PAGE> 96
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
{Insert title or sufficient description of Securities to be delivered}
This is to certify that, as of the date hereof, and except as set
forth below, the above-captioned Securities held by you for our account (i) are
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions
(financial institutions, as defined in United States Treasury Regulations
Section 2.165-12(c)(1)(v) are herein referred to a "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise Post Properties, Inc. or its agent that such
financial institution will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986,
amended, and the regulations thereunder), or (iii) are owned by United States
or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or
foreign financial institution described in clause (iii) above (whether or not
also described in clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise your promptly by tested telex on or prior to
the date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with
Operating Procedures if any applicable statement herein is not correct on
A-1
<PAGE> 97
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certificate excepts and does not relate to U.S. [ ]
of such interest in the above-captioned Securities in respect of which we are
not able to certify and as to which we understand an exchange for an interest
in a Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until
we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:_________________________, 19____
(To be dated no earlier than the 15th
day prior to (i) the Exchange Date or
(ii) the relevant Interest Payment Date
occurring prior to the Exchange Date,
as applicable)
(Name of Person Making Certification)
----------------------------------------
(Authorized Signatory)
Name:
Title:
A-2
<PAGE> 98
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A.A IN CONNECTION WITH THE
EXCHANGE OF A PORTION OF A TEMPORARY
GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
{Insert title or sufficient description of Securities to be delivered}
This is to certify that, based solely on written certifications that
we have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date hereof,
{U.S.}_____________________ principal amount of the above-captioned Securities
(i) is owned by person(s) that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source ("United States person(s)"), (ii) is owned by United States
person(s) that are (a) foreign branches of United States financial institutions
(financial institutions, as defined in the U.S. Treasury Regulations Section
1.165-12(c)(1)(v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
financial institution has agreed, on its own behalf or through its agent, that
we may advise Post Properties, Inc. or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to
the further effect, that financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
As used herein "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations
A-3
<PAGE> 99
to the effect that the statements made by such Member Organizations with
respect to any portion of the part submitted herewith for exchange (or, if
relevant, collection of any interest) are no longer true and cannot be relied
upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:_________________________, 19____
(To be dated no earlier than the
Exchange Date or the relevant Interest
Payment Date occurring prior to the
Exchange Date, as applicable)
{Morgan Guaranty Trust Company of
New York, Brussels Office}, as Operator
of the Euroclear System {Cedel}
By:
------------------------------------
A-4
<PAGE> 1
EXHIBIT 4(b)
FORM OF NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
REGISTERED NO.: PRINCIPAL AMOUNT
$25,000,000
CUSIP NO.: 737415AB5
POST APARTMENT HOMES, L.P.
7 1/2% NOTE DUE OCTOBER 1, 2006
POST APARTMENT HOMES, L.P., a Georgia limited partnership (the
"Issuer", which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or its
registered assigns (the "Holder"), upon presentation, the principal sum of
TWENTY-FIVE MILLION DOLLARS ($25,000,000.00) on October 1, 2006 (the "Maturity
Date"), and to pay interest on the outstanding principal amount thereon from
September 30, 1996, or from the most recent interest payment date to which
interest has been paid or duly provided for, semi-annually in arrears on April
1 and October 1 of each year (each an "Interest Payment Date"), commencing
April 1, 1997, and at the Stated Maturity, at the rate of 7 1/2% per annum,
computed on the basis of a 360-day year comprised of twelve 30-day months,
until the entire principal amount hereof is paid or duly provided for. The
interest so payable, and punctually paid or duly provided for on any Interest
Payment Date will, as provided in the Indenture (hereinafter defined), be paid
to the person in whose name this Note (the "Note") (or one or more predecessor
Notes) is registered at the close of business on the Regular Record Date for
such Interest Payment
<PAGE> 2
Date which shall be the 15th calendar day (regardless of whether such day is a
Business Day) preceding the applicable Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to
be payable to the Holder on such Regular Record Date, and may either be paid to
the Person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Notes not more than 15 days and not less than 10 days prior
to such Special Record Date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. Payments of the
principal and Make-Whole Amount (hereinafter defined), if any, of, and interest
on, this Note will be made at the office or agency of the Trustee (hereinafter
defined) maintained for that purpose at c/o First National Bank of Chicago, 14
Wall Street, Suite 4607, New York, New York 10005, or elsewhere as provided in
the Indenture, in United States Dollars; provided, however, that at the option
of the Issuer payment of interest may be made by (i) check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register kept for the Notes pursuant to Section 305 of the Indenture
(the "Note Register") or (ii) transfer to an account of the Person entitled
thereto located inside the United States. Payments of principal, Make-Whole
Amounts, if any, and interest is respect of this Note will be made by wire
transfer of immediately available funds, in such coin or currency as at the
time of payment is legal tender for the payment of public and private debts, so
long as this Note is in global form as described in Section 203 of the
Indenture. If this Note is not in global form, all such payments will be made
by wire transfer of immediately available funds if the Holder hereof at the
applicable record date shall have provided wire transfer instructions to the
Trustee, received by the Trustee no later than fifteen (15) days prior to the
applicable payment date, and otherwise payment shall be made in accordance with
Section 307 of the Indenture. Such wire transfer instructions shall remain in
effect until revoked in a writing received by the Trustee from the Holder
hereof.
This Note is one of a fully authorized issue of securities of the
Issuer issued under an Indenture, dated as of September 25, 1996 (the
"Indenture"), among the Issuer and Sun Trust Bank, Atlanta (the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the Notes), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Issuer, the Trustee and
Holders of the Notes, and of the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the series designated as the
"7 1/2% Notes Due October 1, 2006," limited in the aggregate principal amount
to $25,000,000.
The Notes may be redeemed at any time at the option of the Issuer, in
whole or from time to time in part, at a redemption price equal to the sum of
(i) the principal amount of the Notes being redeemed plus accrued interest
thereon to the redemption date and (ii) the Make-Whole Amount (as defined
below), if any, with respect to such Notes (the "Redemption Price").
If notice has been given as provided in the Indenture and funds for
the redemption of any Notes called for redemption shall have been made
available on the redemption date referred to in such
2
<PAGE> 3
notice, such Notes will cease to bear interest on the date fixed for such
redemption specified in such notice and the only right of the Holders of the
Notes will be to receive payment of the Redemption Price, with respect to such
Notes or portion thereof so redeemed.
Notice of any optional redemption of any Notes will be given to
Holders at their addresses, as shown in the security register for the Notes,
not more than 60 nor less than 30 days prior to the date fixed for redemption.
The notice of redemption will specify, among other items, the Redemption Price
and the principal amount of the Notes held by such Holder to be redeemed.
If less than all the Notes are to be redeemed at the option of the
Issuer, the Issuer will notify the Trustee at least 45 days prior to giving
notice of redemption (or such shorter period as is satisfactory to the Trustee)
of the aggregate principal amount of Notes to be redeemed and their redemption
date. The Trustee shall select, in such manner as it shall deem fair and
appropriate, the Notes to be redeemed in whole or in part.
In the event of redemption of the Notes in part only, a new Note for
the amount of the unredeemed portion hereof shall be issued in the name of the
Holder hereto, upon cancellation hereof.
As used herein:
"Make-Whole Amount" means, in connection with any optional
redemption or accelerated payment of any Notes, the excess, if any, of
(i) the aggregate present value as of the date of such redemption or
accelerated payment of each dollar of principal being redeemed or paid
and the amount of interest (exclusive of interest accrued to the date
of redemption or accelerated payment) that would have been payable in
respect of each such dollar if such redemption or accelerated payment
had not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Reinvestment Rate (determined on
the third Business Day preceding the date such notice of redemption is
given or declaration of acceleration is made) from the respective
dates on which such principal and interest would have been payable if
such redemption or accelerated payment had not been made to the date
of redemption or accelerated payment, over (ii) the aggregate
principal amount of the Notes being redeemed or paid.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of
the yields under the heading "Week Ending" published in the most
recent Statistical Release under the caption "Treasury Constant
Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment
date of the principal being redeemed or paid. If no maturity exactly
corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment
Rate shall be interpolated or extrapolated from such yields on a
straight-line basis, rounding in each of such relevant periods to the
nearest month. For the purposes of calculating the Reinvestment Rate,
the
3
<PAGE> 4
most recent Statistical Release published prior to the date of
determination of the Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by
the Federal Reserve System and which reports yields on actively traded
United States government securities adjusted to constant maturities,
or, if such statistical release is not published at the time of any
determination under the Indenture, then such other reasonably
comparable index which shall be designated by the Issuer.
The Indenture contains provisions for defeasance at any time
of (a) the entire indebtedness of the Issuer on this Note and (b)
certain restrictive covenants and the related defaults and Events of
Default applicable to the Issuer, in each case, upon compliance by the
Issuer with certain conditions set forth in the Indenture, which
provisions apply to this Note.
In addition to the covenants of the Issuer contained in the
Indenture, the Issuer makes the following covenants with respect to,
and for the benefit of the Holders of, the Notes:
Limitations On Incurrence of Debt. The Issuer will not, and
will not permit a Subsidiary to, incur any Debt (as defined below),
other than intercompany Debt (representing Debt to which the only
parties are the Company, the Issuer and any of their Subsidiaries, but
only so long as such Debt is held solely by any of the Company, the
Issuer and any Subsidiary) if, immediately after giving effect to the
incurrence of such additional Debt, the aggregate principal amount of
all outstanding Debt of the Issuer and its Subsidiaries on a
consolidated basis determined in accordance with generally accepted
accounting principles is greater than 60% of the sum of (i) Total
Assets (as defined below) as of the end of the fiscal quarter covered
in the Issuer's Annual Report on Form 10-K or Quarterly Report on Form
10-Q, as the case may be, most recently filed with the Commission (or,
if such filing is not permitted under the Exchange Act, with the
Trustee) prior to the incurrence of such additional Debt and (ii) the
increase in Total Assets from the end of such quarter including,
without limitation, any increase in Total Assets resulting from the
incurrence of such additional Debt (such increase together with the
Issuer's Total Assets is referred to as the "Adjusted Total Assets").
In addition to the foregoing limitation on the incurrence of
Debt, the Issuer will not, and will not permit any Subsidiary to,
incur any Secured Debt of the Issuer or any Subsidiary if, immediately
after giving effect to the incurrence of such additional Secured Debt,
the aggregate principal amount of all outstanding Secured Debt of the
Issuer and its Subsidiaries on a consolidated basis is greater than
40% of Adjusted Total Assets.
In addition to the foregoing limitations on the incurrence of
Debt, the Issuer will not, and will not permit any Subsidiary to,
incur any Debt, other than intercompany Debt, if the ratio of
Consolidated Income Available for Debt Service to the Annual Debt
Service Charge
4
<PAGE> 5
(in each case as defined below) for the period consisting of the four
consecutive fiscal quarters most recently ended prior to the date on
which such additional Debt is to be incurred shall have been less than
1.5 to 1, on a pro forma basis after giving effect to the incurrence
of such Debt and to the application of the proceeds therefrom, and
calculated on the assumption that (i) such Debt and any other Debt
incurred by the Issuer or its Subsidiaries since the first day of such
four-quarter period and the application of the proceeds therefrom,
including to refinance other Debt, had occurred at the beginning of
such period, (ii) the repayment or retirement of any other Debt by the
Issuer or its Subsidiaries since the first day of such four-quarter
period had been repaid or retired at the beginning of such period
(except that, in making such computation, the amount of Debt under any
revolving credit facility shall be computed based upon the average
daily balance of such Debt during such period), and (iii) in the case
of any increase or decrease in Total Assets, or any other acquisition
or disposition by the Issuer or any Subsidiary of any asset or group
of assets, since the first day of such four-quarter period, including,
without limitation, by merger, stock purchase or sale, or asset
purchase or sale, such increase, decrease or other acquisition or
disposition or any related repayment of Debt had occurred as of the
first day of such period with the appropriate adjustments to net
income and Debt levels with respect to such increase, decrease or
other acquisition or disposition being included in such pro forma
calculation. For purposes of the adjustments referred to in clause
(iii) of the preceding sentence, any income earned (or loss incurred)
as a result of any such increase, decrease or other acquisition or
disposition referred to in clause (iii) for a period less than such
four-quarter period shall be annualized for such four- quarter period.
Maintenance of Total Unencumbered Assets. The Issuer is
required to maintain Total Unencumbered Assets of not less than 150%
of the aggregate outstanding principal amount of the outstanding
Unsecured Debt of the Issuer.
As used herein:
"Annual Debt Service Charge" as of any date means the amount
which is expensed in any 12-month period for interest on Debt of the
Issuer and its Subsidiaries.
"Consolidated Income Available for Debt Service" for any
period means Consolidated Net Income plus amounts which have been
deducted in determining Consolidated Net Income during such period for
(i) Consolidated Interest Expense, (ii) provision for taxes of the
Issuer and its Subsidiaries based on income, (iii) amortization (other
than amortization of debt discount) and depreciation, (iv) provisions
for losses from sales or joint ventures, (v) increases in deferred
taxes and other non-cash items, (vi) charges resulting from a change
in accounting principles, and (vii) charges for early extinguishment
of debt, and less amounts which have been added in determining
Consolidated Net Income during such period for (a) provisions for
gains from sales or joint ventures, and (b) decreases in deferred
taxes and other non-cash items.
5
<PAGE> 6
"Consolidated Interest Expense" means, for any period, and
without duplication, all interest (including the interest component of
rentals on capitalized leases, letter of credit fees, commitment fees
and other like financial charges) and all amortization of debt
discount on all Debt (including, without limitation, payment-in-kind,
zero coupon and other like securities) of the Issuer and its
Subsidiaries, but excluding legal fees, title insurance charges and
other out-of-pocket fees and expenses incurred in connection with the
issuance of Debt, all determined in accordance with generally accepted
accounting principles.
"Consolidated Net Income" for any period means the amount of
consolidated net income (or loss) of the Issuer and its Subsidiaries
for such period determined on a consolidated basis in accordance with
generally accepted accounting principles.
"Debt" of the Issuer or any Subsidiary means any indebtedness
of the Issuer and its Subsidiaries, whether or not contingent, in
respect of (i) borrowed money evidenced by bonds, notes, debentures or
similar instruments, (ii) indebtedness secured by a mortgage, pledge,
lien, charge, encumbrance or any security interest existing on
property owned by the Issuer and its Subsidiaries, (iii) the
reimbursement obligations, contingent or otherwise, in connection with
any letters of credit actually issued or amounts representing the
balance deferred and unpaid of the purchase price of any property
except any such balance that constitutes an accrued expense or trade
payable or (iv) any lease of property by the Issuer and its
Subsidiaries as lessee which is reflected in the Issuer's consolidated
balance sheet as a capitalized lease in accordance with generally
accepted accounting principles, in the case of items of indebtedness
under (i) through (iii) above to the extent that any such items (other
than letters of credit) would appear as a liability on the Issuer's
consolidated balance sheet in accordance with generally accepted
accounting principles, and also includes, to the extent not otherwise
included, any obligation by the Issuer or any Subsidiary to be liable
for, or to pay, as obligor, guarantor or otherwise (other than for
purposes of collection in the ordinary course of business),
indebtedness of another person (other than the Issuer or any
Subsidiary) (it being understood that Debt shall be deemed to be
incurred by the Issuer and its Subsidiaries on a consolidated basis
whenever the Issuer and its Subsidiaries on a consolidated basis shall
create, assume, guarantee or otherwise become liable in respect
thereof).
"Secured Debt" means Debt secured by any mortgage, trust deed,
deed of trust, deed to secure debt, security agreement, pledge,
conditional sale or other title retention agreement, capitalized
lease, or other like agreement granting or conveying security title to
or a security interest in real property or other tangible assets.
"Senior Executive Group" shall mean, collectively, those
individuals holding the offices of Chairman, President, Chief
Executive Officer, Chief Operating Officer, or any Executive Vice
President of the Company.
6
<PAGE> 7
"Subsidiary" means (i) any corporation or other entity the
majority of the shares of the non-voting capital stock or other
equivalent ownership interests of which (except directors' qualifying
shares) are at the time directly or indirectly owned by the Issuer or
the Company, and the majority of the shares of the voting capital
stock or other equivalent ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly
owned by the Issuer, the Company, any other Subsidiary, and/or one or
more individuals of the Senior Executive Group (or, in the event of
death or disability of any of such individuals, his/her respective
legal representative(s)), or such individuals' successors in office as
an officer of the Company or the Secretary of such Subsidiary, and
(ii) any other entity (other than the Company) the accounts of which
are consolidated with the accounts of the Issuer.
"Total Assets" as of any date means the sum of (i)
Undepreciated Real Estate Assets and (ii) all other assets of the
Issuer and its Subsidiaries on a consolidated basis determined in
accordance with generally accepted accounting principles (but
excluding intangibles and accounts receivable).
"Total Unencumbered Assets" means the sum of (i) those
Undepreciated Real Estate Assets not securing any portion of Secured
Debt, and (ii) all other assets of the Issuer and its Subsidiaries not
securing any portion of Secured Debt determined in accordance with
generally accepted accounting principles (but excluding accounts
receivable and intangibles).
"Undepreciated Real Estate Assets" as of any date means the
cost (original cost plus capital improvements) of real estate assets
of the Issuer and its Subsidiaries on such date, before depreciation
and amortization, determined on a consolidated basis in accordance
with generally accepted accounting principles.
"Unsecured Debt" means Debt of the Issuer or any Subsidiary
that is not Secured Debt.
If an Event of Default as defined in the Indenture with respect to the
Notes shall occur and be continuing, the principal of, and premium or
Make-Whole Amount, if any, on, the Notes may be declared, and upon such
declaration shall become, due and payable in the manner and with the effect
provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than 25% in principal amount of the Notes at the
time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee and
offered the Trustee reasonable indemnity and the Trustee shall not have
received from the Holders of a majority in principal amount of the Notes at the
time Outstanding a
7
<PAGE> 8
direction inconsistent with such request, and shall have failed to institute
any such proceeding, for 60 days after receipt of such notice, request and
offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Note for the enforcement of any payment of principal hereof
or any interest on or after the respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer and the Trustee with the consent of the Holders of not less
than a majority in principal amount of the Outstanding Notes. The Indenture
also contains provisions permitting the Holders of not less than a majority in
principal amount of the Notes at the time Outstanding, on behalf of the Holders
of all Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, premium or Make-Whole
Amount, if any, and interest on, this Note at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable in the Note
Register, upon surrender of this Note for registration of transfer at the
office or agency of the Issuer in any Place of Payment where the principal of,
premium or Make-Whole Amount, if any, and interest on, this Note are payable,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar for the Notes duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereon one or more Notes of this series, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of this series of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Issuer, the Trustee and any authorized agent of the Issuer or the Trustee
may treat the Person in whose name this Note is
8
<PAGE> 9
registered as the owner hereof for all purposes, whether or note this Note be
overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE NOTES INCLUDING THIS NOTE, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE, EXCEPT
AS MAY OTHERWISE BE REQUIRED BY MANDATORY PROVISIONS OF LAW.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP" numbers to be
printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the correctness or accuracy of such CUSIP numbers
as printed on the Notes, and reliance may be placed only on the other
identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purposes.
9
<PAGE> 10
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under this corporate seal this 25th day of September, 1996.
POST APARTMENT HOMES, L.P.
By: Post Properties, Inc.
as General Partner
By:
---------------------
Name:
Title:
Attest:
By:
------------------------
Name:
----------------------
Title:
---------------------
[SEAL]
10
<PAGE> 11
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
SUNTRUST BANK, ATLANTA
as Trustee
By:
-----------------------
Authorized Officer
By:
-----------------------
Authorized Officer
11
<PAGE> 12
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers to
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBERS OF ASSIGNS
- ---------------------------------------------------------------------------
- ---------------------------------------------------------------------------
(Please Print or Typewrite Name and Address Including Zip Code of Assignee
- ---------------------------------------------------------------------------
the within Note of Post Apartment Homes, L.P. and
hereby does irrevocably constitute and appoint -------------------------
- ---------------------------------------------------------------------------
Attorney to transfer said Note on the books of the within-named Trust with
Full power of substitution in the premises.
Dated
--------------- ------------------------------
------------------------------
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever.
12
<PAGE> 1
EXHIBIT 4(c)
FORM OF NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
REGISTERED NO.: PRINCIPAL AMOUNT
$100,000,000
CUSIP NO.: 737415AA7
POST APARTMENT HOMES, L.P.
7 1/4% NOTE DUE OCTOBER 1, 2003
POST APARTMENT HOMES, L.P., a Georgia limited partnership (the
"Issuer", which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or its
registered assigns (the "Holder"), upon presentation, the principal sum of ONE
HUNDRED MILLION DOLLARS ($100,000,000.00) on October 1, 2003 (the "Maturity
Date"), and to pay interest on the outstanding principal amount thereon from
September 30, 1996, or from the most recent interest payment date to which
interest has been paid or duly provided for, semi-annually in arrears on April
1 and October 1 of each year (each an "Interest Payment Date"), commencing
April 1, 1997, and at the Stated Maturity, at the rate of 7 1/4% per annum,
computed on the basis of a 360-day year comprised of twelve 30-day months,
until the entire principal amount hereof is paid or duly provided for. The
interest so payable, and punctually paid or duly provided for on any Interest
Payment Date will, as provided in the Indenture (hereinafter defined), be paid
to the person in whose name this Note (the "Note") (or one or more predecessor
Notes) is registered at the close of business on the Regular Record Date for
such Interest Payment
<PAGE> 2
Date which shall be the 15th calendar day (regardless of whether such day is a
Business Day) preceding the applicable Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to
be payable to the Holder on such Regular Record Date, and may either be paid to
the Person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Notes not more than 15 days and not less than 10 days prior
to such Special Record Date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. Payments of the
principal and Make-Whole Amount (hereinafter defined), if any, of, and interest
on, this Note will be made at the office or agency of the Trustee (hereinafter
defined) maintained for that purpose at c/o First National Bank of Chicago, 14
Wall Street, Suite 4607, New York, New York 10005, or elsewhere as provided in
the Indenture, in United States Dollars; provided, however, that at the option
of the Issuer payment of interest may be made by (i) check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register kept for the Notes pursuant to Section 305 of the Indenture
(the "Note Register") or (ii) transfer to an account of the Person entitled
thereto located inside the United States. Payments of principal, Make-Whole
Amounts, if any, and interest is respect of this Note will be made by wire
transfer of immediately available funds, in such coin or currency as at the
time of payment is legal tender for the payment of public and private debts, so
long as this Note is in global form as described in Section 203 of the
Indenture. If this Note is not in global form, all such payments will be made
by wire transfer of immediately available funds if the Holder hereof at the
applicable record date shall have provided wire transfer instructions to the
Trustee, received by the Trustee no later than fifteen (15) days prior to the
applicable payment date, and otherwise payment shall be made in accordance with
Section 307 of the Indenture. Such wire transfer instructions shall remain in
effect until revoked in a writing received by the Trustee from the Holder
hereof.
This Note is one of a fully authorized issue of securities of the
Issuer issued under an Indenture, dated as of September 25, 1996 (the
"Indenture"), among the Issuer and Sun Trust Bank, Atlanta (the "Trustee,"
which term includes any successor trustee under the Indenture with respect to
the Notes), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Issuer, the Trustee and
Holders of the Notes, and of the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the series designated as the
"7 1/4% Notes Due October 1, 2003," limited in the aggregate principal amount
to $100,000,000.
The Notes may be redeemed at any time at the option of the Issuer, in
whole or from time to time in part, at a redemption price equal to the sum of
(i) the principal amount of the Notes being redeemed plus accrued interest
thereon to the redemption date and (ii) the Make-Whole Amount (as defined
below), if any, with respect to such Notes (the "Redemption Price").
If notice has been given as provided in the Indenture and funds for
the redemption of any Notes called for redemption shall have been made
available on the redemption date referred to in such
2
<PAGE> 3
notice, such Notes will cease to bear interest on the date fixed for such
redemption specified in such notice and the only right of the Holders of the
Notes will be to receive payment of the Redemption Price, with respect to such
Notes or portion thereof so redeemed.
Notice of any optional redemption of any Notes will be given to
Holders at their addresses, as shown in the security register for the Notes,
not more than 60 nor less than 30 days prior to the date fixed for redemption.
The notice of redemption will specify, among other items, the Redemption Price
and the principal amount of the Notes held by such Holder to be redeemed.
If less than all the Notes are to be redeemed at the option of the
Issuer, the Issuer will notify the Trustee at least 45 days prior to giving
notice of redemption (or such shorter period as is satisfactory to the Trustee)
of the aggregate principal amount of Notes to be redeemed and their redemption
date. The Trustee shall select, in such manner as it shall deem fair and
appropriate, the Notes to be redeemed in whole or in part.
In the event of redemption of the Notes in part only, a new Note for
the amount of the unredeemed portion hereof shall be issued in the name of the
Holder hereto, upon cancellation hereof.
As used herein:
"Make-Whole Amount" means, in connection with any optional
redemption or accelerated payment of any Notes, the excess, if any, of
(i) the aggregate present value as of the date of such redemption or
accelerated payment of each dollar of principal being redeemed or paid
and the amount of interest (exclusive of interest accrued to the date
of redemption or accelerated payment) that would have been payable in
respect of each such dollar if such redemption or accelerated payment
had not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Reinvestment Rate (determined on
the third Business Day preceding the date such notice of redemption is
given or declaration of acceleration is made) from the respective
dates on which such principal and interest would have been payable if
such redemption or accelerated payment had not been made to the date
of redemption or accelerated payment, over (ii) the aggregate
principal amount of the Notes being redeemed or paid.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of
the yields under the heading "Week Ending" published in the most
recent Statistical Release under the caption "Treasury Constant
Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment
date of the principal being redeemed or paid. If no maturity exactly
corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment
Rate shall be interpolated or extrapolated from such yields on a
straight-line basis, rounding in each of such relevant periods to the
nearest month. For the purposes of calculating the Reinvestment Rate,
the
3
<PAGE> 4
most recent Statistical Release published prior to the date of
determination of the Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by
the Federal Reserve System and which reports yields on actively traded
United States government securities adjusted to constant maturities,
or, if such statistical release is not published at the time of any
determination under the Indenture, then such other reasonably
comparable index which shall be designated by the Issuer.
The Indenture contains provisions for defeasance at any time
of (a) the entire indebtedness of the Issuer on this Note and (b)
certain restrictive covenants and the related defaults and Events of
Default applicable to the Issuer, in each case, upon compliance by the
Issuer with certain conditions set forth in the Indenture, which
provisions apply to this Note.
In addition to the covenants of the Issuer contained in the
Indenture, the Issuer makes the following covenants with respect to,
and for the benefit of the Holders of, the Notes:
Limitations On Incurrence of Debt. The Issuer will not, and
will not permit a Subsidiary to, incur any Debt (as defined below),
other than intercompany Debt (representing Debt to which the only
parties are the Company, the Issuer and any of their Subsidiaries, but
only so long as such Debt is held solely by any of the Company, the
Issuer and any Subsidiary) if, immediately after giving effect to the
incurrence of such additional Debt, the aggregate principal amount of
all outstanding Debt of the Issuer and its Subsidiaries on a
consolidated basis determined in accordance with generally accepted
accounting principles is greater than 60% of the sum of (i) Total
Assets (as defined below) as of the end of the fiscal quarter covered
in the Issuer's Annual Report on Form 10-K or Quarterly Report on Form
10-Q, as the case may be, most recently filed with the Commission (or,
if such filing is not permitted under the Exchange Act, with the
Trustee) prior to the incurrence of such additional Debt and (ii) the
increase in Total Assets from the end of such quarter including,
without limitation, any increase in Total Assets resulting from the
incurrence of such additional Debt (such increase together with the
Issuer's Total Assets is referred to as the "Adjusted Total Assets").
In addition to the foregoing limitation on the incurrence of
Debt, the Issuer will not, and will not permit any Subsidiary to,
incur any Secured Debt of the Issuer or any Subsidiary if, immediately
after giving effect to the incurrence of such additional Secured Debt,
the aggregate principal amount of all outstanding Secured Debt of the
Issuer and its Subsidiaries on a consolidated basis is greater than
40% of Adjusted Total Assets.
In addition to the foregoing limitations on the incurrence of
Debt, the Issuer will not, and will not permit any Subsidiary to,
incur any Debt, other than intercompany Debt, if the ratio of
Consolidated Income Available for Debt Service to the Annual Debt
Service Charge
4
<PAGE> 5
(in each case as defined below) for the period consisting of the four
consecutive fiscal quarters most recently ended prior to the date on
which such additional Debt is to be incurred shall have been less than
1.5 to 1, on a pro forma basis after giving effect to the incurrence
of such Debt and to the application of the proceeds therefrom, and
calculated on the assumption that (i) such Debt and any other Debt
incurred by the Issuer or its Subsidiaries since the first day of such
four-quarter period and the application of the proceeds therefrom,
including to refinance other Debt, had occurred at the beginning of
such period, (ii) the repayment or retirement of any other Debt by the
Issuer or its Subsidiaries since the first day of such four-quarter
period had been repaid or retired at the beginning of such period
(except that, in making such computation, the amount of Debt under any
revolving credit facility shall be computed based upon the average
daily balance of such Debt during such period), and (iii) in the case
of any increase or decrease in Total Assets, or any other acquisition
or disposition by the Issuer or any Subsidiary of any asset or group
of assets, since the first day of such four-quarter period, including,
without limitation, by merger, stock purchase or sale, or asset
purchase or sale, such increase, decrease or other acquisition or
disposition or any related repayment of Debt had occurred as of the
first day of such period with the appropriate adjustments to net
income and Debt levels with respect to such increase, decrease or
other acquisition or disposition being included in such pro forma
calculation. For purposes of the adjustments referred to in clause
(iii) of the preceding sentence, any income earned (or loss incurred)
as a result of any such increase, decrease or other acquisition or
disposition referred to in clause (iii) for a period less than such
four-quarter period shall be annualized for such four-quarter period.
Maintenance of Total Unencumbered Assets. The Issuer is
required to maintain Total Unencumbered Assets of not less than 150%
of the aggregate outstanding principal amount of the outstanding
Unsecured Debt of the Issuer.
As used herein:
"Annual Debt Service Charge" as of any date means the amount
which is expensed in any 12-month period for interest on Debt of the
Issuer and its Subsidiaries.
"Consolidated Income Available for Debt Service" for any
period means Consolidated Net Income plus amounts which have been
deducted in determining Consolidated Net Income during such period for
(i) Consolidated Interest Expense, (ii) provision for taxes of the
Issuer and its Subsidiaries based on income, (iii) amortization (other
than amortization of debt discount) and depreciation, (iv) provisions
for losses from sales or joint ventures, (v) increases in deferred
taxes and other non-cash items, (vi) charges resulting from a change
in accounting principles, and (vii) charges for early extinguishment
of debt, and less amounts which have been added in determining
Consolidated Net Income during such period for (a) provisions for
gains from sales or joint ventures, and (b) decreases in deferred
taxes and other non-cash items.
5
<PAGE> 6
"Consolidated Interest Expense" means, for any period, and
without duplication, all interest (including the interest component of
rentals on capitalized leases, letter of credit fees, commitment fees
and other like financial charges) and all amortization of debt
discount on all Debt (including, without limitation, payment-in-kind,
zero coupon and other like securities) of the Issuer and its
Subsidiaries, but excluding legal fees, title insurance charges and
other out-of-pocket fees and expenses incurred in connection with the
issuance of Debt, all determined in accordance with generally accepted
accounting principles.
"Consolidated Net Income" for any period means the amount of
consolidated net income (or loss) of the Issuer and its Subsidiaries
for such period determined on a consolidated basis in accordance with
generally accepted accounting principles.
"Debt" of the Issuer or any Subsidiary means any indebtedness
of the Issuer and its Subsidiaries, whether or not contingent, in
respect of (i) borrowed money evidenced by bonds, notes, debentures or
similar instruments, (ii) indebtedness secured by a mortgage, pledge,
lien, charge, encumbrance or any security interest existing on
property owned by the Issuer and its Subsidiaries, (iii) the
reimbursement obligations, contingent or otherwise, in connection with
any letters of credit actually issued or amounts representing the
balance deferred and unpaid of the purchase price of any property
except any such balance that constitutes an accrued expense or trade
payable or (iv) any lease of property by the Issuer and its
Subsidiaries as lessee which is reflected in the Issuer's consolidated
balance sheet as a capitalized lease in accordance with generally
accepted accounting principles, in the case of items of indebtedness
under (i) through (iii) above to the extent that any such items (other
than letters of credit) would appear as a liability on the Issuer's
consolidated balance sheet in accordance with generally accepted
accounting principles, and also includes, to the extent not otherwise
included, any obligation by the Issuer or any Subsidiary to be liable
for, or to pay, as obligor, guarantor or otherwise (other than for
purposes of collection in the ordinary course of business),
indebtedness of another person (other than the Issuer or any
Subsidiary) (it being understood that Debt shall be deemed to be
incurred by the Issuer and its Subsidiaries on a consolidated basis
whenever the Issuer and its Subsidiaries on a consolidated basis shall
create, assume, guarantee or otherwise become liable in respect
thereof).
"Secured Debt" means Debt secured by any mortgage, trust deed,
deed of trust, deed to secure debt, security agreement, pledge,
conditional sale or other title retention agreement, capitalized
lease, or other like agreement granting or conveying security title to
or a security interest in real property or other tangible assets.
"Senior Executive Group" shall mean, collectively, those
individuals holding the offices of Chairman, President, Chief
Executive Officer, Chief Operating Officer, or any Executive Vice
President of the Company.
6
<PAGE> 7
"Subsidiary" means (i) any corporation or other entity the
majority of the shares of the non-voting capital stock or other
equivalent ownership interests of which (except directors' qualifying
shares) are at the time directly or indirectly owned by the Issuer or
the Company, and the majority of the shares of the voting capital
stock or other equivalent ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly
owned by the Issuer, the Company, any other Subsidiary, and/or one or
more individuals of the Senior Executive Group (or, in the event of
death or disability of any of such individuals, his/her respective
legal representative(s)), or such individuals' successors in office as
an officer of the Company or the Secretary of such Subsidiary, and
(ii) any other entity (other than the Company) the accounts of which
are consolidated with the accounts of the Issuer.
"Total Assets" as of any date means the sum of (i)
Undepreciated Real Estate Assets and (ii) all other assets of the
Issuer and its Subsidiaries on a consolidated basis determined in
accordance with generally accepted accounting principles (but
excluding intangibles and accounts receivable).
"Total Unencumbered Assets" means the sum of (i) those
Undepreciated Real Estate Assets not securing any portion of Secured
Debt, and (ii) all other assets of the Issuer and its Subsidiaries not
securing any portion of Secured Debt determined in accordance with
generally accepted accounting principles (but excluding accounts
receivable and intangibles).
"Undepreciated Real Estate Assets" as of any date means the
cost (original cost plus capital improvements) of real estate assets
of the Issuer and its Subsidiaries on such date, before depreciation
and amortization, determined on a consolidated basis in accordance
with generally accepted accounting principles.
"Unsecured Debt" means Debt of the Issuer or any Subsidiary
that is not Secured Debt.
If an Event of Default as defined in the Indenture with respect to the
Notes shall occur and be continuing, the principal of, and premium or
Make-Whole Amount, if any, on, the Notes may be declared, and upon such
declaration shall become, due and payable in the manner and with the effect
provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than 25% in principal amount of the Notes at the
time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee and
offered the Trustee reasonable indemnity and the Trustee shall not have
received from the Holders of a majority in principal amount of the Notes at the
time Outstanding a
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<PAGE> 8
direction inconsistent with such request, and shall have failed to institute
any such proceeding, for 60 days after receipt of such notice, request and
offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Note for the enforcement of any payment of principal hereof
or any interest on or after the respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer and the Trustee with the consent of the Holders of not less
than a majority in principal amount of the Outstanding Notes. The Indenture
also contains provisions permitting the Holders of not less than a majority in
principal amount of the Notes at the time Outstanding, on behalf of the Holders
of all Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, premium or Make-Whole
Amount, if any, and interest on, this Note at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable in the Note
Register, upon surrender of this Note for registration of transfer at the
office or agency of the Issuer in any Place of Payment where the principal of,
premium or Make-Whole Amount, if any, and interest on, this Note are payable,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar for the Notes duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereon one or more Notes of this series, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of this series of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Issuer, the Trustee and any authorized agent of the Issuer or the Trustee
may treat the Person in whose name this Note is
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<PAGE> 9
registered as the owner hereof for all purposes, whether or note this Note be
overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE NOTES INCLUDING THIS NOTE, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE, EXCEPT
AS MAY OTHERWISE BE REQUIRED BY MANDATORY PROVISIONS OF LAW.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP" numbers to be
printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the correctness or accuracy of such CUSIP numbers
as printed on the Notes, and reliance may be placed only on the other
identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purposes.
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<PAGE> 10
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under this corporate seal this 25th day of September, 1996.
POST APARTMENT HOMES, L.P.
By: Post Properties, Inc.
as General Partner
By:
---------------------
Name:
Title:
Attest:
By:
------------------------
Name:
----------------------
Title:
---------------------
[SEAL]
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
SUNTRUST BANK, ATLANTA
as Trustee
By:
-----------------------
Authorized Officer
By:
-----------------------
Authorized Officer
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<PAGE> 12
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers to
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBERS OF ASSIGNS
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
(Please Print or Typewrite Name and Address Including Zip Code of Assignee
- --------------------------------------------------------------------------
the within Note of Post Apartment Homes, L.P. and
hereby does irrevocably constitute and appoint ------------------------
- --------------------------------------------------------------------------
Attorney to transfer said Note on the books of the within-named Trust with
Full power of substitution in the premises.
Dated:
--------------- ------------------------------
------------------------------
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever.
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<PAGE> 1
EXHIBIT 4(d)
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
POST PROPERTIES, INC.
DESIGNATING THE VOTING POWERS, DESIGNATION, PREFERENCES AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS AND QUALIFICATIONS, LIMITATIONS
OR RESTRICTIONS
OF THE
8 1/2% SERIES A CUMULATIVE REDEEMABLE PREFERRED SHARES
I.
The name of the corporation is Post Properties, Inc. (the "Corporation").
II.
The amendment is to add the following new Article 8:
"8.
Pursuant to authority granted under Section 2(b) of the Corporation's
Articles of Incorporation (the "Articles of Incorporation"), the Board of
Directors of the Corporation hereby establishes a series of preferred shares
designated the 8 1/2% Series A Cumulative Redeemable Preferred Shares ($0.01
Par Value Per Share) (Liquidation Preference $50.00 Per Share) (the "Preferred
Shares") on the following terms:
(a) NUMBER. The maximum number of authorized shares of the Preferred
Shares shall be 1,150,000.
(b) RELATIVE SENIORITY. In respect of rights to receive dividends and to
participate in distributions of payments in the event of any liquidation,
dissolution or winding up of the Corporation, the Preferred Shares shall rank
senior to the Common Shares and any other class or series of shares of the
Corporation ranking, as to dividends and upon liquidation, junior to the
Preferred Shares (collectively, "Junior Shares").
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(c) DIVIDENDS.
(1) The holders of the then outstanding Preferred Shares shall be entitled
to receive, when and as declared by the Board of Directors out of any funds
legally available therefor, cumulative dividends at the rate of $4.25 per share
per year, payable in equal amounts of $1.0625 per share quarterly in cash on
the last day of each March, June, September, and December or, if not a Business
Day (as hereinafter defined), the next succeeding Business Day beginning on
December 31, 1996 (each such day being hereafter called a "Quarterly Dividend
Date" and each period ending on a Quarterly Dividend Date being hereinafter
called a "Dividend Period"). Dividends shall be payable to holders of record
as they appear in the share records of the Corporation at the close of business
on the applicable record date (the "Record Date"), which shall be the 15th day
of the calendar month in which the applicable Quarterly Dividend Date falls on
or such other date designated by the Board of Directors of the Corporation for
the payment of dividends that is not more than 30 nor less than 10 days prior
to such Quarterly Dividend Date. The amount of any dividend payable for any
Dividend Period shorter than a full Dividend Period shall be prorated and
computed on the basis of a 360-day year of twelve 30-day months. Dividends on
each share of Preferred Shares shall accrue and be cumulative from and
including the date of original issue thereof, whether or not (i) dividends on
such shares are earned or declared or (ii) on any Quarterly Dividend Date there
shall be funds legally available for the payment of dividends. Dividends paid
on the Preferred Shares in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated pro
rata on a per share basis among all such shares at the time outstanding.
"Business Day" shall mean any day, other than a Saturday or Sunday, that
is neither a legal holiday not a day on which banking institutions in New York
City are authorized or required by law, regulation or executive order to close.
(2) The amount of any dividends accrued on any Preferred Shares at any
Quarterly Dividend Date shall be the amount of any unpaid dividends accumulated
thereon, to and including such Quarterly Dividend Date, whether or not earned
or declared, and the amount of dividends accrued on any shares of Preferred
Shares at any date other than a Quarterly Dividend Date shall be equal to the
sum of the amount of any unpaid dividends accumulated thereon, to and including
the last preceding Quarterly Dividend Date, whether or not earned or declared,
plus an amount calculated on the basis of the annual dividend rate of $4.25 per
share for the period after such last preceding Quarterly Dividend Date to and
including the date as of which the calculation is made based on a 360-day year
of twelve 30-day months.
(3) Except as provided in this Part II, the Preferred Shares shall not be
entitled to participate in the earnings or assets of the Corporation, and no
interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on the Preferred Shares which may be in
arrears.
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(4) Any dividend payment made on the Preferred Shares shall be first
credited against the earliest accrued but unpaid dividend due with respect to
such shares which remains payable.
(5) If, for any taxable year, the Corporation elects to designate as
"capital gain dividends" (as defined in Section 857 of the Internal Revenue Code
of 1986, as amended (the "Code")), any portion (the "Capital Gains Amount") of
the dividends paid or made available for the year to holders of all classes of
Shares (the "Total Dividends"), then the portion of the Capital Gains Amount
that shall be allocated to the holders of the Preferred Shares shall be the
amount of the total dividends paid or made available to the holders of the
Preferred Shares shall be the amount of the total dividends paid or made
available to the holders of the Preferred Shares for the year bears to the Total
Dividends.
(6) No dividends on the Preferred Shares shall be authorized by the Board
of Directors or be paid or set apart for payment by the Corporation at such time
as the terms and provisions of any agreement of the Corporation, including any
agreement relating to its indebtedness, prohibit such authorization, payment or
setting apart for payment or provides that such authorization, payment or
setting apart for payment would constitute a breach thereof or a default
thereunder, or if such authorization or payment shall be restricted or
prohibited by law. Notwithstanding the foregoing, dividends on the Preferred
Shares will accrue whether or not the Corporation has earnings, whether or not
there are funds legally available for the payment of such dividends and whether
or not such dividends are authorized.
(d) LIQUIDATION RIGHTS.
(1) Upon the voluntary or involuntary dissolutions, liquidation or winding
up of the Corporation, the holders of the Preferred Shares then outstanding
shall be entitled to receive and to be paid out of the assets of the Corporation
available for distribution to its shareholders, before any payment or
distribution shall be made on any Junior Shares, the amount of $50.00 per share,
plus accrued and unpaid dividends thereon.
(2) After the payment to the holders of the Preferred Shares of the full
preferential amounts provided for in this Part II, the holder of the Preferred
Shares, as such, shall have no right or claim to any of the remaining assets of
the Corporation.
(3) If, upon any voluntary or involuntary dissolution, liquidation, or
winding up of the Corporation, the amounts payable with respect to the
preference value of the Preferred Shares and any other shares of the Corporation
ranking as to any such distribution on a parity with the Preferred Shares are
not paid in full, the holders of the Preferred Shares and of such other shares
will share ratably in any such distribution of assets of the Corporation in
proportion to the full respective preference amounts to which they are entitled.
(4) Neither the sale, lease, transfer or conveyance of all or
substantially all of the property or business of the Corporation, nor the
merger or consolidation of the Corporation into or with any
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<PAGE> 4
other entity or the merger or consolidation of any other entity into or with
the Corporation, shall be deemed to be a dissolution, liquidation or winding
up, voluntary or involuntary, for the purposes of this Part II.
(e) REDEMPTION.
(1) OPTIONAL REDEMPTION. On and after October 1, 2026, the Corporation
may, at its option, redeem at any time all or, from time to time, part of the
Preferred Shares at a price per share (the " Redemption Price"), payable in
cash, of $50, together with all accrued and unpaid dividends to the and
including the date fixed for redemption (the "Redemption Date"). The Preferred
Shares have no stated maturity and will not be subject to any sinking fund or
mandatory redemption provisions.
(2) PROCEDURES OF REDEMPTION.
(i) Notice of redemption will be given by publication in a newspaper
of general circulation in the City of New York, such publication to be
made once a week for two successive weeks commencing not less than 30 nor
more than 60 days prior to the Redemption Date. Notice of any redemption
will also be mailed by the registrar, postage prepaid, not less than 30
nor more than 60 days prior to the Redemption Date, addressed to each
holder of record of the Preferred Shares to be redeemed at the address set
forth in the share transfer records of the Corporation. No failure to
give such notice or any defect therein or in the mailing thereof shall
affect the validity of the proceedings for the redemption of any Preferred
Shares except as to the holder to whom the Corporation has failed to give
notice or except as to the holder to whom notice was defective. In
addition to any information required by law or by the applicable rules of
any exchange upon which Preferred Shares (or depositary shares or receipts
representing fractional interests in Preferred Shares) may be listed or
admitted to trading, such notice shall state: (a) the Redemption Date;
(b) the Redemption Price; (c) the number of Preferred Shares to be
redeemed; (d) the place or places where certificates for such shares are
to be surrendered for payment of the Redemption Price; and (e) that
dividends on the shares to be redeemed will cease to accumulate on the
Redemption Date.
(ii) If notice has been mailed in accordance with subparagraph
(e)(2)(i) above and provided that on or before the Redemption Date
specified in such notice all funds necessary for such redemption shall
have been irrevocably set aside by the Corporation, separate and apart
from its other funds in trust for the pro rata benefit of the holders of
the Preferred Shares so called for redemption, so as to be, and to
continue to be available therefor, then, from and after the Redemption
Date, dividends on the Preferred Shares so called for redemption shall
cease to accumulate, and said shares shall no longer be deemed to be
outstanding and shall not have the status of Preferred Shares and all
rights of the holders thereof a shareholder of the Corporation (except the
right to receive the Redemption Price) shall cease. Upon surrender, in
accordance with such notice, of the
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<PAGE> 5
certificates for any Preferred Shares so redeemed (properly endorsed or
assigned for transfer, if the Corporation shall so require and the notice
shall so state), such Preferred Shares shall be redeemed by the
Corporation at the Redemption Price. In case fewer than all the Preferred
Shares represented by any such certificate are redeemed, a new certificate
or certificates shall be issued presenting the unredeemed Preferred Shares
without cost to the holder thereof.
(iii) Any funds deposited with a bank or trust company for the
purpose or redeeming Preferred Shares shall be irrevocable except that:
(A) the Corporation shall be entitled to receive from such bank
or trust company the interest or other earnings, if any, earned on
any money so deposited in trust, and the holders of any shares
redeemed shall have no claim to such interest or other earnings; and
(B) any balance of monies so deposited by the Corporation and
unclaimed by the holders of the Preferred Shares entitled thereto at
the expiration of two years from the applicable Redemption Date
shall be repaid, together with any interest or other earnings earned
thereon, to the Corporation, and after any such repayment, the
holders of the shares entitled to the funds so repaid to the
Corporation shall look only to the Corporation for payment without
interest or other earnings.
(iv) No Preferred Shares may be redeemed except from proceeds from
the sale of other capital stock of the Corporation, including but not
limited to common stock, preferred stock, depositary shares, interests,
participations or other ownership interests (however designated) and any
rights (other than debt securities convertible into or exchangeable for
equity securities) or options to purchase any of the foregoing.
(v) Unless full accumulated dividends on all Preferred Shares shall
have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for all past
Dividend Periods and the then current Dividend Period, no Preferred Shares
shall be redeemed or purchased or otherwise acquired directly or
indirectly (except by conversion into or exchange for Junior Shares);
provided, however, that the foregoing shall not prevent the redemption of
Preferred Shares to preserve the Corporation's REIT status or the purchase
or acquisition of Preferred Shares pursuant to a purchase or exchange
offer made on the same terms to holders of all outstanding shares of
Preferred Shares.
(vi) If the Redemption Date is after a Record Date and before the
related Quarterly Dividend Date, the dividend payable on such Quarterly
Dividend Date shall be paid to the holder in whose name the Preferred
Shares to be redeemed are registered at the close of business on such
Record Date notwithstanding the redemption thereof between
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<PAGE> 6
such Record Date and the related Quarterly Dividend Date or the
Corporation's default in the payment of the dividend due.
(vii) In case of redemption of less than all Preferred Shares at the
time outstanding, the Preferred Shares to be redeemed shall be selected
pro rata from the holders of record of such shares in proportion to the
number of Preferred Shares held by such holders (with adjustments to avoid
redemption of fractional shares) or by any other equitable method
determined by the Corporation.
(f) VOTING RIGHTS. Except as required by law, and as set forth below, the
holders of the Preferred Shares shall not be entitled to vote at any meeting of
the shareholders for election of Directors or for any other purpose or
otherwise to participate in any action taken by the Corporation or the
shareholders thereof, or to receive notice of any meeting of shareholders.
(1) Whenever dividends on any Preferred Shares shall be in arrears for six
or more quarterly periods, whether or not such quarterly periods are
consecutive, the holders of such Preferred Shares (voting separately as a class
with all other series of preferred shares upon which like voting rights have
been conferred and are exercisable) will be entitled to vote for the election of
two additional Directors of the Corporation at a special meeting called by the
holders of record of at least ten percent (10%) of any series of preferred
shares so in arrears (unless such request is received less than 90 days before
the date fixed of for the next annual or special meeting of the shareholders) or
at the next annual meeting of shareholders, and at each subsequent annual
meeting until all dividends accumulated on such Preferred Shares for the past
dividend periods and the then current dividend period shall have been fully paid
or declared and a sum sufficient for the payment thereof set aside for payment.
In such case, the entire Board of Directors of the Corporation will be increased
by two Directors.
(2) So long as any Preferred Shares remain outstanding, the Corporation
will not, without the affirmative vote or consent of the holders of at least
two-thirds of the Preferred Shares outstanding at the time, given in person or
by proxy, either in writing or at a meeting (such series voting separately as a
class), (i) authorize or create, or increase the authorized or issued amount of,
any class or series of shares of beneficial interest ranking prior to the
Preferred Shares with respect to the payment of dividends or the distribution of
assets upon liquidation, dissolution or winding up or reclassify any authorized
shares of the Corporation into such shares, or create, authorize or issue any
obligation or security convertible into or evidencing the right to purchase any
such shares; or (ii) amend, alter or repeal the provisions of the Corporation's
Articles of Incorporation, including this Amendment, whether by merger,
consolidation or otherwise (an "Event"), so as to materially and adversely
affect any right, preference, privilege or voting power of the Preferred Shares
or the holders thereof; provided, however, with respect to the occurrence of any
of the Events set forth in (ii) above, so long as the Preferred Shares remain
outstanding with the terms thereof materially unchanged, taking into account
that upon the occurrence of an Event, the Corporation may not be the surviving
entity, the occurrence of any such Event shall not be deemed to materially and
adversely affect such rights, preferences,
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privileges or voting power of holders of Preferred Shares and provided further
that (x) any increase in the amount of the authorized Preferred Shares or the
creating or issuance of any other Preferred Shares, or (y) any increase in the
amount of authorized Preferred Shares or any other preferred shares, in each
case ranking on a parity with or junior to the Preferred Shares with respect to
payment of dividends or the distribution of assets upon liquidation, dissolution
or winding up, shall not be deemed to materially and adversely affect such
rights, preferences, privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding Preferred Shares shall have been redeemed or called
for redemption and sufficient funds shall have been deposited in trust to effect
such redemption.
(3) On each matter submitted to a vote of the holders of Preferred Shares
in accordance with this Part II, or as otherwise required by law, each Preferred
Share shall be entitled to one vote. With respect to each Preferred Share, the
holder thereof may designate a proxy, with each such proxy having the right to
vote on behalf of the holder.
(g) CONVERSION. The Preferred Shares are not convertible into or
exchangeable for an other property or securities of the Corporation.
(h) RESTRICTIONS ON OWNERSHIP.
(1) Definitions. The following terms shall have the following meanings:
(i) "Acquire" shall mean the acquisition of Beneficial Ownership of
Preferred Shares by any means whatsoever including, without limitation, (A) the
acquisition of direct ownership of shares by any Person, including through the
exercise of any option, warrant, pledge, security interest or similar right to
acquire shares, and (B) the acquisition of indirect ownership of shares (taking
into account the constructive ownership rules of Section 544 of the Code, as
modified by Section 856(h)(l)(B) of the Code, and also applying the look-thru
rule contained in Section 856(h)(3)(A) of the Code to pension trusts described
in Section 401(a) of the Code) by a Person who is an individual within the
meaning of Section 542(a) (2) of the Code, including through the acquisition by
any Person of any option, warrant, pledge, security interest or similar right to
acquire shares.
(ii) "Beneficial Ownership" shall mean, with respect to any Person
that is an "individual" as defined in Section 542(a) (2) of the Code, the
Preferred Shares owned by such Person after taking into account the
constructive ownership rules of Section 544 of the Code, as modified by Section
856(h)(1)(B) of the Code, and after applying the pension trust look-thru rule
contained in Section 856(h)(3)(A) of the Code. The terms "Beneficial Owner,"
"Beneficially Owns" and "Beneficially Owned" shall have the correlative
meanings.
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<PAGE> 8
(iii) "Code" shall mean the Internal Revenue Code of 1986, as amended. Any
reference herein to any current provision of the Code shall be deemed to refer
to any future successor provision of federal income statutory law.
(iv) "Initial Public Offering" means the sale of Preferred Shares pursuant
to the Corporation's first effective registration statement for such Preferred
Shares filed under the Securities Act of 1933, as amended.
(v) "Ownership Limit" shall initially mean 6% of the outstanding Preferred
Shares of the Corporation, and after any adjustment as set forth in Part
II(h)(8), shall mean such greater percentage (but not greater than 9.8%) of the
outstanding Preferred Shares as so adjusted.
(vi) "Person" shall mean an individual, corporation, partnership, estate,
trust (including a trust qualified under Section 401(a) or 501(c) (17) of the
Code), a portion of a trust permanently set aside for or to be used exclusively
for the purposes described in Section 642(c) of the Code, association, private
foundation within the meaning of Section 509(a) of the Code, joint stock company
or other entity and also includes a group as that term is used for purposes of
Section 13(d) (3) of the Securities Exchange Act of 1934, as amended; but does
not include an underwriter that participates in a public offering of the
Preferred Shares for a period of 90 days following the purchase by such
underwriter of the Preferred Shares.
(vii) "REIT" shall mean a Real Estate Investment Trust under Section 856
of the Code.
(viii) "Restricted Transfer Redemption Price" shall mean the lower of
(A) the price paid by the transferee from whom shares are being redeemed and
(B) the average of the last reported sales prices on the New York Stock
Exchange of Preferred Shares on the ten trading days immediately preceding the
date fixed for redemption by the Board of Directors, or if the Preferred Shares
are not then traded on the New York Stock Exchange, the average of the last
reported sales prices of the Preferred Shares on the ten trading days
immediately preceding the relevant date as reported on any exchange or
quotation system over which the Preferred Shares may be traded, or if the
Preferred Shares are not then traded over any exchange or quotation system,
then the price determined in good faith by the Board of Directors of the
Corporation as the fair market value of Preferred Shares on the relevant date.
The Restricted Transfer Redemption Price may, at the option of the Corporation,
be paid in the form of a number of Units equal to the number of shares redeemed
divided by the Conversion Factor, as that term is defined in the Partnership
Agreement of Post Apartment Homes, L.P., as effective on the date of the
Initial Public Offering.
(ix) "Restriction Termination Date" shall mean the first day after the
date of the Initial Public Offering on which the Corporation determines pursuant
to Part II(h)(11) of this Designating Amendment that it is no longer in the best
interests of the Corporation to attempt to, or continue to, qualify as a REIT.
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(x) "Transfer" shall mean any sale, transfer, gift, assignment,
devise or other disposition that results in a change in the record or
Beneficial Ownership of Preferred Shares or the right to vote or receive
dividends on Preferred Shares (including (A) the granting of any option or
entering into any agreement for the sale, transfer or other disposition of
Preferred Shares or the right to vote or receive dividends on Preferred Shares
or (B) the sale, transfer, assignment or other disposition or grant of any
securities or rights convertible into or exchangeable for Preferred Shares, or
the right to vote or receive dividends on Preferred Shares), whether voluntary
or involuntary and whether by operation of law or otherwise.
(xi) "Units" shall mean Partnership Units as that term is defined in
the Agreement of Limited Partnership of Post Apartment Homes, L.P., as
effective on the date of the Initial Public Offering.
(2) Restrictions.
(i) During the period commencing on the date of the Initial Public
Offering and prior to the Restriction Termination Date: (A) no Person shall
Acquire any Preferred Shares if, as the result of such acquisition, any
individual, as defined in Section 542(a)(2) of the Code (other than a pension
trust which is described in Section 401(a) of the Code) shall Beneficially Own
an amount of Preferred Shares in excess of the Ownership Limit; (B) no Person
shall Acquire any shares of Preferred Shares if, as a result of such
acquisition, the Preferred Shares and Common Shares of the Corporation would be
directly or indirectly owned by less than 100 Persons (determined without
reference to the rules of attribution under Section 544 of the Code); and (C)
no Person shall Acquire any shares if, as a result of such acquisition, the
Corporation would be "closely held" within the meaning of Section 856(h) of the
Code.
(ii) Any Transfer that (x) would result in a violation of the
restrictions in Part II(h)(2)(i)(B) or (C) or (y) a transferring shareholder
has actual knowledge will result in a violation of any of the restrictions in
Part II(h)(2)(i)(A) shall be void ab initio as to the Transfer of such
Preferred Shares that would cause the violation of the applicable restriction
in Part II(h)(2)(i), and the intended transferee shall acquire no rights in
such Preferred Shares.
(3) Remedies for Breach.
(i) If the Board of Directors or a committee thereof shall at any
time determine in good faith that a Transfer has taken place that falls within
the scope of Part II(h)(2)(ii) or that a Person intends to Acquire Beneficial
Ownership of any shares of the Corporation that will result in violation of
Part II(h)(2)(i) or (ii) (whether or not such violation is intended), the Board
of Directors or a committee thereof shall take such action as it or they deem
advisable to refuse to give effect to or to prevent such Transfer, including,
but not limited to, refusing to give effect to such Transfer on the books of
the Corporation or instituting proceedings to enjoin such Transfer.
9
<PAGE> 10
(ii) Without limitation to Part II(h)(2)(ii) or (3)(i), any purported
transferee of Beneficial Ownership of Preferred Shares acquired in violation of
Part II(h)(2) shall, if it shall be deemed to have received any such Beneficial
Ownership, be deemed to have acted as agent on behalf of the Corporation in
acquiring such of the interests as result in a violation of Part II(h)(2) and
shall be deemed to hold such interests in trust on behalf and for the benefit of
the Corporation. The transferee shall have no right to receive dividends or
other distributions with respect to such interests, and shall have no right to
vote such interests. Such transferee shall have no claim, cause of action, or
any other recourse whatsoever against a transferor of interests acquired in
violation of Part II(h)(2). The transferee's sole right with respect to such
interests shall be to receive at the Corporation's sole and absolute discretion,
either (A) consideration for such interests upon the resale of the interests as
directed by the Corporation pursuant to Part II(h)(3)(iii) or (B) the
Restricted Transfer Redemption Price pursuant to Part II(h)(3)(iii).
(iii) The Board of Directors shall, within 6 months after receiving
notice of a Transfer that violates Part II(h)(3)(ii), either (in its sole and
absolute discretion) (A) direct the transferee of such interests to sell all
interests held in trust for the Corporation pursuant to Part II(h)(3)(ii) for
cash in such manner as the Board of Directors directs or (B) redeem such
interests for the Restricted Transfer Redemption Price on such date within such
6 month period as the Board of Directors may determine. If the Board of
Directors directs the transferee to sell the interests, the transferee shall
receive such proceeds as trustee for the Corporation and pay the Corporation
out of the proceeds of such sale all expenses incurred by the Corporation in
connection with such sale plus any remaining amount of such proceeds that
exceeds the amount paid by the transferee for the interests, and the transferee
shall be entitled to retain only the proceeds in excess of such amounts
required to be paid to the Corporation.
(4) Notice of Restricted Transfer. Any Person who Acquires or attempts or
intends to Acquire shares in violation of Part II(h)(2) shall immediately give
written notice to the Corporation of such event and shall provide to the
Corporation such other information as the Corporation may request in order to
determine the effect, if any, of such Transfer or attempted or intended Transfer
on the Corporation's status as a REIT.
(5) Owners Required To Provide Information. From the date of the Initial
Public Offering and prior to the Restriction Termination Date each person who is
a Beneficial Owner of Preferred Shares and each Person (including the
shareholder of record) who is holding Preferred Shares for a Beneficial Owner
shall provide to the Corporation such information as the Corporation may
request, in good faith, in order to determine the Corporation's status as a
REIT.
(6) Remedies Not Limited. Except as provided in Part II(h)(13), nothing
contained in this Part II(h) shall limit the authority of the Board of Directors
to take such other action as it deems necessary or advisable to protect the
Corporation and the interests of its shareholder in preserving the Corporation's
status as a REIT.
10
<PAGE> 11
(7) Ambiguity. In the case of an ambiguity in the application of any of
the provisions of this Part II(h), including any definition contained in Part
II(h)(1), the Board of Directors shall have the power to determine the
application of the provisions of this Part II(h) with respect to any situation
based on the facts known to it.
(8) Modification of Ownership Limit. Subject to the limitations provided
in Part II(h)(9), the Board of Directors may from time to time increase the
Ownership Limit.
(9) Limitations on Modifications.
(i) The Ownership Limit may not be increased if, after giving effect
to such increase, five Persons who are considered individuals pursuant to
Section 542(a) (2) of the Code could Beneficially Own (including ownership of
Common Shares for purposes of this Part II(h)(9)(i)), in the aggregate, more
than 49.0% in value of the outstanding shares of stock of the Corporation.
(ii) Prior to the modification of the Ownership Limit pursuant to
Part II(h)(8), the Board of Directors of the Corporation may require such
opinions of counsel, affidavits, undertakings or agreements as it may deem
necessary or advisable in order to determine or ensure the Corporation's status
as a REIT.
(10) Legend. Each certificate for Preferred Shares shall bear the
following legend:
"The Preferred Shares represented by this certificate are subject to
restrictions on transfer for the purpose of the Corporation's
maintenance of its status as a Real Estate Investment Trust under
the Internal Revenue Code of 1986, as amended. No Person may
Acquire any Preferred Shares if, as a result of such acquisition,
any individual, as defined in Section 542(a)(2) of the Code (other
than a pension trust which is described in section 401(a) of the
Code) shall Beneficially Own an amount of Preferred Shares in excess
of 6.0% (or such greater percentage as may be determined by the
Board of Directors of the Corporation) of the outstanding Preferred
Shares of the Corporation. Any Person who attempts to Beneficially
Own Preferred Shares in excess of the above
11
<PAGE> 12
limitations must immediately notify the Corporation.
Any Preferred Shares so held may be subject to
mandatory redemption or sale in certain events, and
certain purported acquisitions of Preferred Shares in
excess of such limitations shall be void ab initio. A
Person who attempts to Beneficially Own shares of
Preferred Shares in violation of the ownership
limitations set forth in Part II(h)(2) of the
Designating Amendment shall have no claim, cause of
action, or any other recourse whatsoever against a
transferor of such shares. All capitalized terms in
this legend have the meanings defined in the
Corporation's Designating Amendment, a copy of which,
including the restrictions on transfer, will be sent
without charge to each shareholder who so requests.
(11) Termination of REIT Status. The Board of Directors shall take no
action to terminate the Corporation's status as a REIT or to amend the
provisions of this Part II(h) until such time as (A) the Board of Directors
adopts a resolution recommending that the Corporation terminate its status as a
REIT or amend this Part II(h), as the case may be, (B) the Board of Directors
presents the resolution at an annual or special meeting of the shareholder and
(C) such resolution is approved by holders of a majority of the issued and
outstanding Preferred Shares.
(12) Severability. If any provision of this Article or any application of
any such provision is determined to be invalid by any Federal or state court
having jurisdiction over the issues, the validity of the remaining provisions
shall not be affected and other applications of such provision shall be affected
only to the extent necessary to comply with the determination of such court.
(13) NYSE Settlement. Nothing in this Designating Amendment shall
preclude the settlement of any transaction with respect to the Preferred Shares
of the Corporation entered into through the facilities of the New York Stock
Exchange."
III.
This Amendment was duly adopted by the Board of Directors on September 26,
1996, without shareholder approval, as such approval is not required.
12
<PAGE> 13
IN WITNESS WHEREOF, Post Properties, Inc. has caused these Articles of
Amendment to be executed and sealed by its duly authorized officers this ___
day of September, 1996.
POST PROPERTIES, INC.
By:__________________________
Title:
[CORPORATE SEAL]
Attest:
____________________
Secretary
13
<PAGE> 1
EXHIBIT 4(e)
TEMPORARY CERTIFICATE-EXCHANGEABLE FOR DEFINITIVE ENGRAVED CERTIFICATE WHEN
READY FOR DELIVERY
[LOGO] [LOGO]
PAR VALUE $.01 PER SHARE
8 1/2% SERIES A CUMULATIVE
REDEEMABLE PREFERRED SHARES
POST PROPERTIES, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF GEORGIA
THE CERTIFICATE IS TRANSFERABLE SEE REVERSE FOR
IN THE CITIES OF NEW YORK, NY CERTAIN CONDITIONS
OR WINSTON-SALEM, NC
CUSIP 737464 206
THIS IS TO CERTIFY THAT:
is the
owner of:
FULLY PAID AND NON-ASSESSABLE SHARES OF THE 8 1/2% SERIES A CUMULATIVE
REDEEMABLE PREFERRED SHARES OF
POST PROPERTIES, INC. TRANSFERABLE ON THE BOOKS OF SAID COMPANY IN PERSON OR
BY ATTORNEY ON THE SURRENDER OF THIS CERTIFICATE PROPERLY ENDORSED.
THIS CERTIFICATE IS NOT VALID UNTIL COUNTERSIGNED BY THE TRANSFER AGENT
AND REGISTERED BY THE REGISTRAR.
CERTIFICATE OF STOCK
DATED
COUNTERSIGNED AND REGISTERED /S/ JOHN A. WILLIAMS
WACHOVIA BANK OF NORTH CAROLINA, N.A. ---------------------
WINSTON-SALEM, NC TRANSFER AGENT CHAIRMAN OF THE BOARD
AND REGISTRAR
/S/ SHERRY W. COHEN
---------------------
SECRETARY
POST PROPERTIES, INC.
SEAL
GEORGIA
<PAGE> 2
POST PROPERTIES, INC.
THE ARTICLES OF AMENDMENT ON FILE IN THE OFFICE OF THE SECRETARY OF STATE OF
THE STATE OF GEORGIA SET FORTH A FULL STATEMENT OF ALL DESIGNATIONS,
PREFERENCES, AND OTHER RIGHTS, VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO
DIVIDENDS, QUALIFICATIONS, AND TERMS AND CONDITIONS OF REDEMPTION, AND OTHER
RELATIVE RIGHTS OF THE PREFERRED SHARES REPRESENTED BY THIS CERTIFICATE. THE
PREFERRED SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON OWNERSHIP FOR THE PURPOSE OF MAINTAINING THE COMPANY'S STATUS
AS A REAL ESTATE INVESTMENT TRUST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED. THE ARTICLES OF AMENDMENT ON FILE IN THE OFFICE OF THE SECRETARY OF
STATE OF THE STATE OF GEORGIA SET FORTH A FULL STATEMENT OF (A) THE TRANSFER
RESTRICTIONS WHICH ARE APPLICABLE TO THE PREFERRED SHARES REPRESENTED BY THIS
CERTIFICATE AND (B) THE CONSEQUENCES FOR TRANSFERRING THE PREFERRED SHARES IN
VIOLATION OF SUCH RESTRICTIONS.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be counted as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM --as tenants in common UNIF GIFT MIN ACT --
TEN ENT --as tenants by the entireties ........ Custodian ...............
JT TEN --as joint tenants with right of (Cust) (Minor)
survivorship and not as tenants under Uniform Gifts to Minors
in common Act..................
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED_____________HEREBY SELL, ASSIGN, AND TRANSFER UNTO
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ACCOUNT
-----------------------
---------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE OF
ASSIGNEE)
---------------------------------------------------------------------
---------------------------------------------------------------------
---------------------------------------------------------------SHARES
OF THE PREFERRED SHARES REPRESENTED BY THE WITHIN CERTIFICATE AND DO
HEREBY IRREVOCABLY CONSTITUTE AND APPOINT
-------------------------------------------------------------ATTORNEY
TO TRANSFER THE SAID STOCK ON THE BOOKS OF THE WITHIN NAMED
CORPORATION WITH FULL POWER OF SUBSTITUTION IN THE PREMISES
DATED
-----------------------------
SIGNATURE(S) GUARANTEED: ---------------------------
(SIGNATURE)
- ------------------------------------- -----------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED NOTICE: THE SIGNATURE(S) ON THIS
BY AN ELIGIBLE GUARANTOR INSTITUTION, ASSIGNMENT MUST CORRESPOND WITH
AS DEFINED IN RULE 17AD-15 UNDER THE NAME(S) AS WRITTEN UPON THE
THE SECURITIES AND EXCHANGE ACT FACE OF THE CERTIFICATE IN EVERY
OF 1934 AS AMENDED. PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT, OR ANY CHANGES
WHATSOEVER.
<PAGE> 1
EXHIBIT 5
September 27, 1996
Post Properties, Inc.
Post Apartment Homes, L.P.
3350 Cumberland Circle
Suite 2200
Atlanta, Georgia 30339
Re: Post Apartment Homes, L.P. -- 7 1/4% Notes due 2003 and 7 1/2%
Notes due 2006 Post Properties, Inc. -- 8 1/2% Series A
Cumulative Redeemable Preferred Shares
--------------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel for Post Properties, Inc., a Georgia
corporation (the "Company"), and Post Apartment Homes, L.P., a Georgia limited
partnership (the "Operating Partnership"), in connection with the registration
under the Securities Act of 1933, as amended, of $100,000,000 aggregate
principal amount of 7 1/4% Notes due 2003 (the "2003 Notes"), $25,000,000
aggregate principal amount of 7 1/2% Notes due 2006 (the "2006 Notes"; together
with the 2003 Notes, the "Notes") pursuant to a Prospectus Supplement dated
September 25, 1996 (the "Notes Prospectus Supplement") and $50,000,000
liquidation preference 8 1/2% Series A Cumulative Redeemable Preferred Shares
(the "Preferred Shares") pursuant to a Prospectus Supplement dated September
26, 1996 (the "Preferred Shares Prospectus Supplement").
In connection with this opinion, we have examined and relied
upon such records, documents, certificates and other instruments as in our
judgment are necessary or appropriate to form the basis for the opinions
hereinafter set forth. In all such examinations, we have assumed the
genuineness of signatures on original documents and the conformity to such
original documents of all copies submitted to us as certified, conformed or
photographic copies, and as to certificates of public officials, we have
assumed the same to have been properly given and to be accurate. As to matters
of fact material to this opinion, we have relied upon statements and
representations of representatives of the Company and of public officials.
We have assumed that the execution and delivery of, and the
performance of all obligations under, an indenture (the "Indenture") dated as
of September 25, 1996 between the Operating Partnership and SunTrust Bank,
Atlanta, as trustee (the "Trustee") will be duly authorized by all requisite
action by the Trustee, and that the Indenture will be duly executed and
delivered by, and will be a valid and binding agreement of, the Trustee,
enforceable against the Trustee in accordance with its terms.
<PAGE> 2
Post Properties, Inc.
Post Apartment Homes, L.P.
September 27, 1996
Page 14
- -------------------
This opinion is limited in all respects to the federal laws of
the United States of America and the laws of the States of Georgia and New
York, and no opinion is expressed with respect to the laws of any other
jurisdiction or any effect which such laws may have on the opinions expressed
herein. This opinion is limited to the matters stated herein, and no opinion
is implied or may be inferred beyond the matters expressly stated herein.
Based upon the foregoing, and the other limitations and
qualifications set forth herein, we are of the opinion that:
(i) The General Partner is a corporation validly existing and,
based solely on a certificate of the Secretary of State of the State of
Georgia, in good standing under the laws of the State of Georgia;
(ii) The Operating Partnership is a validly existing limited
partnership under the laws of the State of Georgia;
(iii) Upon the issuance and sale thereof as described in the Notes
Prospectus Supplement and, when executed by the Operating Partnership and duly
authenticated by the Trustee in accordance with the terms of the Indenture, the
Notes will (x) be valid and binding obligations of the Operating Partnership,
enforceable against the Operating Partnership in accordance with their terms
and (y) be entitled to the benefits of the Indenture; and
(iv) Upon the issuance and sale of the Preferred Shares as
described in the Preferred Shares Prospectus Supplement, such shares will be
validly issued, fully paid and nonassessable.
The opinions set forth above are subject, as to enforcement,
to (i) bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting the enforcement of creditors' rights generally,
and (ii) general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or law).
This opinion is given as of the date hereof, and we assume no
obligation to advise you after the date hereof of facts or circumstances that
come to our attention or changes in law that occur which could affect the
opinions contained herein. This letter is being rendered solely for the
benefit of the Company in connection with the matters addressed herein. This
opinion may not be furnished to or relied upon by any person or entity for any
purpose without our prior written consent.
Very truly yours,
KING & SPALDING
<PAGE> 1
EXHIBIT 12
POST APARTMENT HOMES, L.P
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in Thousands)
<TABLE>
<CAPTION> SIX MONTHS
ENDS
JUNE 30,
-------------------
1996 1995
------ ------
<S> <C> <C>
Pre-tax income continuing operations $ 24,875 $ 16,491
-------- --------
Fixed charges
Interest incurred and amortization of debt
discount and premium on all indebtedness 13,124 14,473
Rentals - 33.34% (1) 243 339
-------- --------
Total fixed charges 13,367 14,812
-------- --------
Earnings before income taxes, minority interest
and fixed charges 38,242 31,303
Adjustment for capitalized interest (1,909) (2,926)
-------- --------
Total earnings $ 36,333 $ 28,377
======== ========
Ratio of Earnings to Fixed Charges 2.7 1.9
======== ========
</TABLE>
(1) The interest factor of rental expense is calculated as one-third of rental
expense which represents an appropriate interest factor.
