<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
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) October 20, 1997
----------------
Post Apartment Homes, L.P.
--------------------------
(Exact name of registrant as specified in its charter)
Georgia 0-28226 58-2053632
- ------------------------------ -------------- ---------------------
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
3350 Cumberland Circle, Atlanta, Georgia 30339
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (770) 850-4400
--------------
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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. 333-36595).
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
1(a) - Distribution Agreement
4(a) - Form of Fixed Rate Note (Incorporated by reference
from Exhibit 4(a) to the Registrant's Current Report
on Form 8-K dated January 29, 1997)
4(b) - Form of Floating Rate Note (Incorporated by reference
from Exhibit 4(b) to the Registrant's Current Report
on Form 8-K dated January 29, 1997)
5(a) - Opinion of King & Spalding
8(a) - Opinion of King & Spalding re: tax matters
23(a) - Consent of Ernst & Young LLP
23(b) - Consent of King & Spalding (included in Exhibit
5(a))
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<PAGE> 3
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: October 20, 1997 By:/s/ John A. Williams
--------------------------------------
John A. Williams
Chairman of the Board, Chief Executive
Officer and Director
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<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number and Description Page
- ------------------------------ ----
<S> <C>
1(a) - Distribution Agreement
4(a) - Form of Fixed Rate Note (Incorporated by reference from Exhibit 4(a) to
the Registrant's Current Report on Form 8-K dated January 29, 1997)
4(b) - Form of Floating Rate Note (Incorporated by reference from Exhibit 4(b)
to the Registrant's Current Report on Form 8-K dated January 29, 1997)
5(a) - Opinion of King & Spalding
8(a) - Opinion of King & Spalding re: tax matters
23(a) - Consent of Ernst & Young LLP
23(b) - Consent of King & Spalding (included in Exhibit 5(a))
</TABLE>
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<PAGE> 1
EXHIBIT 1(a)
POST APARTMENT HOMES, L.P.
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
October 20, 1997
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
J.P. MORGAN SECURITIES INC.
60 Wall Street
New York, New York 10260
Dear Sirs:
Post Apartment Homes, L.P., a Georgia limited partnership (the
"Operating Partnership"), confirms its agreement with Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, and J.P. Morgan Securities
Inc. (each, an "Agent," and collectively, the "Agents") with respect to the
issue and sale by the Operating Partnership of its Medium-Term Notes Due Nine
Months or More From Date of Issue (the "Notes"). The Notes are to be issued
pursuant to an Indenture, dated as of September 25, 1996, as amended or
modified from time to time (the "Indenture"), between the Operating Partnership
and SunTrust Bank, Atlanta, as trustee (the "Trustee"). As of the date hereof,
the Operating Partnership has authorized the issuance and sale of up to U.S.
$344,000,000 aggregate initial offering price of Notes (or its equivalent,
based upon the exchange rate on the applicable trade date in such foreign or
composite currencies as the Operating Partnership shall designate at the time
of issuance) to or through the Agents pursuant to the terms of this Agreement.
It is understood, however, that the Operating Partnership may from time to time
authorize the issuance of additional Notes and that such
<PAGE> 2
additional Notes may be sold to or through the Agents pursuant to the terms of
this Agreement, all as though the issuance of such Notes were authorized as of
the date hereof.
This Agreement provides both for the sale of Notes by the Operating
Partnership to one or more Agents as principal for resale to investors and
other purchasers and for the sale of Notes by the Operating Partnership
directly to investors (as may from time to time be agreed to by the Operating
Partnership and the applicable Agent), in which case such Agent will act as an
agent of the Operating Partnership in soliciting offers for the purchase of
Notes.
Post Properties, Inc., a Georgia corporation (the "Company"), and the
Operating Partnership have filed with the Securities and Exchange Commission
(the "Commission") registration statement on Form S-3 (No. 333-36595) for the
registration of, among other securities, debt securities of the Operating
Partnership (the "Debt Securities"), including the Notes, 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"). Such
registration statement (as amended, if applicable) has been declared effective
by the Commission and the Indenture has been duly 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 Notes 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 the applicable Agent(s) by the Operating Partnership for
use in connection with the offering of Notes (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 such applicable Agent(s) for such use; provided, further, that a
Prospectus Supplement shall be deemed to have supplemented the Prospectus only
with respect to the offering of Notes to which it relates. Any registration
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 shall be deemed to be part of the
Prospectus. A "preliminary prospectus" shall be deemed to refer to any
prospectus used before the registration statement became effective and any
prospectus furnished by the Operating Partnership after the registration
statement became effective and before any acceptance by the Operating
Partnership of an offer for the purchase of Notes which omitted information to
be included upon pricing in a form of prospectus filed with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations. 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
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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 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. Appointment as Agent.
(a) Appointment. Subject to (i) the terms and conditions stated
herein and (ii) the reservation by the Operating Partnership of the right to
sell Notes directly on its own behalf and to appoint, upon at least 10 days'
prior written notice to the Agents, additional persons to serve as Agents
hereunder (provided that such persons are engaged on the same terms and
conditions as those contained in this Agreement), the Operating Partnership
hereby agrees that Notes will be sold to or through the Agents and that it will
not appoint any other agents to act on its behalf, or to assist it, in the
placement of the Notes; provided, however, that notwithstanding anything to the
contrary included in this Agreement, the Operating Partnership may accept any
offer to purchase Notes from or through any broker or dealer (other than an
Agent) if (i) the Operating Partnership shall not have solicited such offer,
(ii) such broker or dealer is engaged on substantially the same terms and
conditions as those contained in this Agreement, except for the obligations
described in Sections 8(a), 8(b) and 8(c) hereof, and (iii) the Operating
Partnership notifies the Agents promptly following acceptance of such an offer.
(b) Sale of Notes. The Operating Partnership shall not sell or
approve the solicitation of offers for the purchase of Notes in excess of the
amount which shall be authorized by the Operating Partnership from time to time
or in excess of the aggregate initial offering price of Notes registered
pursuant to the Registration Statement. The Agents shall have no responsibility
for maintaining records with respect to the aggregate initial offering price of
Notes sold, or of otherwise monitoring the availability of Notes for sale,
under the Registration Statement.
(c) Purchases as Principal. The Agents shall not have any
obligation to purchase Notes from the Operating Partnership as principal.
However, absent an agreement between an Agent and the Operating Partnership
that such Agent shall be acting solely as an agent for the Operating
Partnership, such Agent shall be deemed to be acting as principal in connection
with any offering of Notes by the Operating Partnership through such Agent.
Accordingly, the Agents, individually or in a syndicate, may agree from time to
time to purchase Notes from the Operating Partnership as
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<PAGE> 4
principal for resale to investors and other purchasers determined by such
Agents. Any purchase of Notes from the Operating Partnership by an Agent as
principal shall be made in accordance with Section 3(a) hereof.
(d) Solicitations as Agent. If agreed upon between an Agent and
the Operating Partnership, such Agent, acting solely as an agent for the
Operating Partnership and not as principal, will solicit offers for the
purchase of Notes. Such Agent will communicate to the Operating Partnership,
orally, each offer for the purchase of Notes solicited by it on an agency basis
other than those offers rejected by such Agent. Such Agent shall have the
right, in its discretion reasonably exercised, to reject any offer for the
purchase of Notes, in whole or in part, and any such rejection shall not be
deemed a breach of its agreement contained herein. The Operating Partnership
may accept or reject any offer for the purchase of Notes, in whole or in part.
Such Agent shall make reasonable efforts to assist the Operating Partnership in
obtaining performance by each purchaser whose offer for the purchase of Notes
has been solicited by it on an agency basis and accepted by the Operating
Partnership. Such Agent shall not have any liability to the Operating
Partnership in the event that any such purchase is not consummated for any
reason. If the Operating Partnership shall default on its obligation to deliver
Notes to a purchaser whose offer has been solicited by such Agent on an agency
basis and accepted by the Operating Partnership, the Operating Partnership
shall (i) hold such Agent harmless against any loss, claim or damage arising
from or as a result of such default by the Operating Partnership and (ii) pay
to such Agent any commission to which it would otherwise be entitled absent
such default.
(e) Reliance. The Operating Partnership and the Agents agree that
any Notes purchased from the Operating Partnership by one or more Agents as
principal shall be purchased, and any Notes the placement of which an Agent
arranges as an agent of the Operating Partnership shall be placed by such
Agent, in reliance on the representations, warranties, covenants and agreements
of the Operating Partnership contained herein and on the terms and conditions
and in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Operating Partnership represents and warrants to each
Agent as of the date hereof, as of the date of each acceptance by the Operating
Partnership of an offer for the purchase of Notes (whether to such Agent as
principal or through such Agent as agent), as of the date of each delivery of
Notes (whether to such Agent as principal or through such Agent as agent) (the
date of each such delivery to such Agent as principal is referred to herein as
a "Settlement Date"), and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented, other than an amendment or
supplement relating solely to the offering of securities other than the Notes
(each of the times referenced above is referred to herein as a "Representation
Date"), as follows:
(1) The Operating Partnership meets the requirements
for use of Form S-3 under the 1933 Act. The Registration
Statement (including 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
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<PAGE> 5
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. The 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, 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. As of the date
hereof, at the date of the Prospectus 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 an Agent by the
Operating Partnership for use in connection with an offering
of Notes 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
an Agent 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 the Agents 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 Notes,
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
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<PAGE> 6
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 Agents for use in connection with the offering of Notes
will, at the time of such delivery, be identical to the
electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
(4) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations") and, when read
together with the other information in the Prospectus, at the
time the Registration Statement became effective, at the date
hereof, at the date of the Prospectus and as of each
Representation Date, 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) 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 and ratios
of earnings to fixed charges and preferred stock dividends
(actual and, if any, pro forma) included in the Prospectus
under the captions "Ratios of Earnings to Fixed
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<PAGE> 7
Charges and Preferred Stock Dividends" and in Exhibit 12.1 to
the Registration Statement have been calculated in compliance
with Item 503(d) of Regulation S-K of the Commission. In
addition, any pro forma financial statements included in, or
incorporated by reference into, the Registration Statement
and the Prospectus comply in all material respects with the
applicable requirements of Rule 11-02 of Regulation S-X of
the Commission, and the assumptions used in the preparation
thereof are, in the opinion of the Company, reasonable and
the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein and
have been 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 2(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 and the
other agreements to which it is a party. The Operating
Partnership is duly qualified or registered as a foreign
partnership and is in good standing in each jurisdiction in
which such qualification or registration is required, whether
by reason of the ownership, leasing or management of property
or the conduct of business, except where the failure to so
qualify or register would not have a Material Adverse Effect.
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(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 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) 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. Except as otherwise
disclosed in the Registration Statement or Prospectus, the
Operating Partnership owns no direct or indirect equity
interest in any entity other than its Subsidiaries.
(11) The Operating Partnership has full power and
authority to enter into and perform its obligations under
this Agreement and this Agreement has been duly authorized,
executed and delivered by the Operating Partnership and,
assuming due authorization, execution and delivery by the
other parties thereto, is a valid and binding agreement of
the Operating Partnership enforceable against the Operating
Partnership in accordance with its terms, except as (A) the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium 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.
(12) The Indenture (A) has been duly authorized,
executed and delivered by the Operating Partnership, and,
assuming due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the
Operating Partnership, enforceable against the Operating
Partnership in accordance with its terms, subject to (i)
applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or similar laws affecting
creditors' rights generally and (ii) general principles of
equity (regardless of whether such
8
<PAGE> 9
enforceability is considered in a proceeding at law or in
equity and except the effect on enforceability of (a)
requirements that a claim with respect to any Notes payable
other than in U.S. dollars (or a foreign or composite
currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (b) federal or state
law limiting, delaying or prohibiting the making of payments
outside the United States; and (B) conforms in all material
respects to the description thereof in the Prospectus.
(13) The Notes have been duly authorized by the
Operating Partnership for offer, sale, issuance and delivery
pursuant to this Agreement and when issued and authenticated
in the manner provided for in the Indenture and delivered
against payment of the consideration therefor, 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, subject to (i) applicable
bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or similar laws affecting creditors'
rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding at law or in equity and except the effect on
enforceability of (a) requirements that a claim with respect
to any Notes payable other than in U.S. dollars (or a foreign
or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law or (b)
federal or state law limiting, delaying or prohibiting the
making of payments outside the United States. Such Notes will
be in the form contemplated by, and each registered holder
thereof is entitled to the benefits of, the applicable
Indenture. The terms of such Notes conform in all material
respects to all statements and descriptions related thereto
contained in the Prospectus. Such Notes 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 Notes will be effectively subordinated to the prior
claims of each secured mortgage lender to any specific
Property which secures such lender's mortgage.
(14) Neither the Operating Partnership nor any of
its Subsidiaries is in violation of its charter, by-laws,
certificate of limited partnership, partnership agreement or
LLC agreement, as the case may be, or in default in the
performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which it or any of
them is a party or by which any of them may be bound, or to
which any of their property or assets is subject, except for
such defaults that could not result in a Material Adverse
Effect. The execution, delivery and performance of this
Agreement and the Indenture and the execution and delivery of
the Notes and the transactions contemplated herein or
therein, including the issuance, sale and delivery of the
Notes and the
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use of the proceeds from the sale of the Notes 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, except any violation that could not result in a
Material Adverse Effect. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require
the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Operating Partnership or any
Subsidiary.
(15) 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.
(16) 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 could reasonably be
expected to result in a Material Adverse Effect, or which
might materially and adversely affect the consummation of
this Agreement, the Indenture or the transactions
contemplated herein or therein or the performance by the
Operating Partnership of its obligations under this
Agreement, the Indenture or the Notes. There is no pending
legal or governmental proceedings to which the Operating
Partnership or any Subsidiary is a party or of which any of
their respective assets or properties is subject which could
reasonably be expected to result in a Material Adverse
Effect.
(17) There are no contracts or documents of the
Company or the Operating Partnership which are required to be
described in the Registration
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<PAGE> 11
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.
(18) 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, the Indenture and the
Notes or in connection with the transactions contemplated
under this Agreement, the Indenture, or the Notes, except
such as have been already obtained or as may be required
under the 1933 Act, the 1939 Act, the 1933 Act Regulations or
state securities or real estate syndication laws or the rules
of the National Association of Securities Dealers, Inc.
("NASD").
(19) 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.
(20) 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 be reasonably likely to
result in a Material Adverse Effect. Neither the Operating
Partnership nor any of its Subsidiaries has received any
notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could be reasonably likely to
result in a Material Adverse Effect.
(21) (A) Except as otherwise set forth in the
Registration Statement or Prospectus, the Operating
Partnership has good and marketable fee simple title to the
land underlying the Properties and good and marketable title
to the improvements thereon and all other assets that are
required for the effective operation of such Properties in
the manner in which they currently are operated,
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<PAGE> 12
subject, however, to mortgages on such Properties, to utility
easements serving such Properties, to liens of ad valorem
taxes not due and payable, to zoning and similar governmental
land use matters affecting such Properties that are
consistent with the current uses of such Properties, to
matters of title not adversely affecting marketability of
title to such Properties, other statutory liens not due and
payable, title matters that may be material in character,
amount or extent but which do not materially detract from the
value, or interfere with the use of, the Properties or
otherwise materially impair the business operations being
conducted or proposed to be conducted thereon, ownership of
cable television lines and facilities serving one or more of
such Properties by the cable television providers or their
affiliates, service marks and trade names used in connection
with such Properties, and ownership by others of certain
items of equipment and other items of personal property that
are not material to the conduct of business operations at
such Properties; (B) the ground lease under which the
Operating Partnership leases the land on which any Property
is located is in full force and effect, and the Operating
Partnership is not in default in respect of any of the terms
or provisions of any such lease and the Operating Partnership
has not received notice of the assertion of any claim by
anyone adverse to the Operating Partnership's rights as
lessee under any such lease, or affecting or questioning the
Operating Partnership's right to the continued possession or
use of the Property under any such lease or of a default
under any such lease, other than claims which would not have
a Material Adverse Effect; (C) all liens, charges,
encumbrances, claims, or restrictions on or affecting any of
the Properties and the assets of the Operating Partnership or
any Subsidiary which are required to be disclosed in the
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) except as otherwise set forth in the Registration
Statement or Prospectus or to the extent not material to the
Operating Partnership, no person has an option or right of
first refusal to purchase all or part of any Property or any
interest therein; (F) each of the Properties complies with
all applicable codes, laws and regulations (including,
without limitation, building and zoning codes, laws and
regulations and laws relating to access to the Properties),
except to the extent disclosed in the 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 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
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<PAGE> 13
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.
(22) The Operating Partnership is not, and upon the
issuance and sale of the Notes 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.
(23) 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 liabilities under, or any violations of,
any Environmental Law applicable to such Property, give rise
to the imposition of any Lien (as defined below) under any
Environmental Law, or cause or constitute a health, safety or
environmental hazard to any property, person or entity except
any violation which could not be reasonably likely to result
in a Material Adverse Effect; (C) neither the Operating
Partnership nor any Subsidiary is engaged in or intends to
engage in any manufacturing or any similar operations at any
Property that (1) require the use, handling, transportation,
storage, treatment or disposal of any Hazardous Substance
(other than paints, stains, cleaning solvents, insecticides,
herbicides, or other substances that are used in the ordinary
course of operating any Property and in compliance with all
applicable Environmental Laws) or (2) require permits or are
otherwise regulated pursuant to any Environmental Law; (D)
except as otherwise set forth in the Registration Statement
or Prospectus, neither the Operating Partnership nor any
Subsidiary has received any notice of a claim under or
pursuant to any Environmental Law applicable to a Property or
under common law pertaining to Hazardous Substances on any
Property or pertaining to other property at which Hazardous
Substances generated at any Property have come to be located
which could be reasonably likely to result in a Material
Adverse Effect; (E) except as otherwise set forth in the
Registration Statement or Prospectus, neither the Operating
Partnership nor any Subsidiary has received any notice from
any Governmental Authority (as defined below) claiming any
violation of any Environmental Law that is uncured or
unremediated as of the date hereof which could reasonably be
likely to result in a Material Adverse
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<PAGE> 14
Effect; and (F) except as otherwise set forth in the
Registration Statement or Prospectus, no Property (1) is
included or, to the knowledge of the Operating Partnership or
any Subsidiary, proposed for inclusion on the National
Priorities List issued pursuant to CERCLA (as defined below)
by the United States Environmental Protection Agency (the
"EPA") or on the Comprehensive Environmental Response,
Compensation, and Liability Information System database
maintained by the EPA as a potential CERCLA removal, remedial
or response site or (2) is included or proposed for inclusion
on, any similar list of potentially contaminated sites
pursuant to any other applicable Environmental Law nor has
the Operating Partnership, or any subsidiary received any
written notice from the EPA or any other Governmental
Authority proposing the inclusion of any Property on such
list.
As used herein, "Hazardous Substance" shall include,
without limitation, any hazardous substance, hazardous waste,
toxic or dangerous substance, pollutant, solid waste or
similarly designated materials, including, without
limitation, oil, petroleum, or any petroleum-derived
substance or waste, asbestos or asbestos-containing
materials, PCBs, pesticides, explosives, radioactive
materials, dioxins, urea formaldehyde insulation or any
constituent of any such substance, pollutant or waste,
including any such substance, pollutant or waste identified,
listed or regulated under any Environmental Law (including,
without limitation, materials listed in the United States
Department of Transportation Optional Hazardous Material
Table, 49 C.F.R. ss. 172.101, as the same may now or
hereafter be amended, or in the EPA's List of Hazardous
Substances and Reportable Quantities, 40 C.F.R. Part 3202, as
the same may now or hereafter be amended); "Environment"
shall mean any surface water, drinking water, ground water,
land surface, subsurface strata, river sediment, buildings,
structures, and ambient, workplace and indoor air;
"Environmental Law" shall mean the Comprehensive
Environmental Response, Compensation and Liability Act, as
amended (42 U.S.C. ss. 9601, et seq.) ("CERCLA"), the
Resource Conservation Recovery Act, as amended (42 U.S.C. ss.
6901, et seq.), the Clean Air Act, as amended (42 U.S.C. ss.
7401, et seq.), the Clean Water Act, as amended (33 U.S.C.
ss. 1251, et seq.), the Toxic Substances Control Act, as
amended (15 U.S.C. ss. 2601 et seq.), the Occupational Safety
and Health Act of 1970, as amended (29 U.S.C. ss. 651, et
seq.), the Hazardous Materials Transportation Act, as amended
(49 U.S.C. ss. 1801, et seq.), together with all rules,
regulations and orders promulgated thereunder and all other
federal, state and 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,
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<PAGE> 15
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.
(24) 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.
(25) The assets of the Operating Partnership do not
constitute "plan assets" under the Employee Retirement Income
Security Act of 1974, as amended.
(26) Except as otherwise set forth in the
Registration Statement or Prospectus, the mortgages and deeds
of trust encumbering the properties and assets are not
convertible and are not cross-defaulted or
cross-collateralized to any property not owned by the
Operating Partnership or any of its Subsidiaries; except as
otherwise disclosed in the Registration Statement or
Prospectus, none of the Operating Partnership or any of its
Subsidiaries holds participating interests in such mortgages
and deeds of trust.
(27) 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.
(28) The Company was organized and has operated in
conformity with the requirements for qualification and
taxation as a REIT for each of its taxable years beginning
with the year ended December 31, 1993, and its current
organization and method of operation should enable it to
continue to meet the requirements for qualification and
taxation as a REIT.
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<PAGE> 16
(29) 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.
(30) 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.
(31) The Notes, upon issuance, will be excluded or
exempted under, or beyond the purview of, the Commodity
Exchange Act, as amended, and the rules and regulations of
the Commodity Futures Trading Commission under such Act, as
amended.
(32) To the Operating Partnership's knowledge after
due inquiry, the Medium-Term Note Program under which the
Notes are issued (the "Program"), as well as the Notes, are
rated Baa1 Moody's Investors Service, Inc. and BBB+ by
Standard & Poor's Ratings Service, or such other rating as to
which the Operating Partnership shall have most recently
notified the Agents pursuant to Section 4(b) hereof.
(b) Additional Certifications. Any certificate signed by any
officer of the Operating Partnership (or any officer of the Company) or any of
its Subsidiaries and delivered to one or more Agents or to counsel for the
Agents in connection with an offering of Notes to one or more Agents as
principal or through an Agent as agent shall be deemed a representation and
warranty by the Operating Partnership to such Agent or Agents 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 3. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. Unless otherwise agreed between an
Agent and the Operating Partnership, Notes shall be purchased by such Agent as
principal. Notes purchased from the Operating Partnership by the Agents,
individually or in a syndicate, as principal shall be made in accordance with
terms agreed upon between such Agent or Agents and the Operating Partnership
(which terms, unless otherwise agreed, shall, to the extent applicable, include
those terms specified in Exhibit A hereto and shall be agreed upon orally, with
written confirmation prepared by such Agent or Agents and mailed to the
Operating Partnership). An Agent's commitment to purchase Notes as principal
shall be deemed to have been made on the basis of the representations and
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<PAGE> 17
warranties of the Operating Partnership herein contained and shall be subject
to the terms and conditions herein set forth. Unless the context otherwise
requires, references herein to "this Agreement" shall include the applicable
agreement of one or more Agents to purchase Notes from the Operating
Partnership as principal. Each purchase of Notes, unless otherwise agreed,
shall be at a discount from the principal amount of each such Note equivalent
to the applicable commission set forth in Schedule A hereto. The Agents may
engage the services of any broker or dealer in connection with the resale of
the Notes purchased by them as principal and may allow all or any portion of
the discount received from the Operating Partnership in connection with such
purchases to such brokers or dealers. At the time of each purchase of Notes
from the Operating Partnership by one or more Agents as principal, such Agent
or Agents shall specify the requirements for the officers' certificate,
opinions of counsel and comfort letter, if any, pursuant to Sections 8(b), 8(c)
and 8(d) hereof.
(b) Solicitations as Agent. On the basis of the representations
and warranties herein contained, and subject to the terms and conditions herein
set forth, when agreed by the Operating Partnership and an Agent, such Agent,
as an agent of the Operating Partnership, will use its reasonable efforts to
solicit offers for the purchase of Notes upon the terms set forth in the
Prospectus. The Agents are not authorized to appoint sub-agents with respect to
Notes sold through them as agent. All Notes sold through an Agent as agent will
be sold at 100% of their principal amount unless otherwise agreed upon between
the Operating Partnership and such Agent.
The Operating Partnership reserves the right, in its sole discretion,
to suspend solicitation of offers for the purchase of Notes through an Agent,
as an agent of the Operating Partnership, commencing at any time for any period
of time or permanently. As soon as practicable after receipt of instructions
from the Operating Partnership, such Agent will suspend solicitation of offers
for the purchase of Notes from the Operating Partnership until such time as the
Operating Partnership has advised such Agent that such solicitation may be
resumed.
The Operating Partnership agrees to pay each Agent a commission, in
the form of a discount, equal to the applicable percentage of the principal
amount of each Note sold by the Operating Partnership as a result of a
solicitation made by such Agent, as an agent of the Operating Partnership, as
set forth in Schedule A hereto.
(c) Administrative Procedures. The purchase price, interest rate
or formula, maturity date and other terms of the Notes specified in Exhibit A
hereto (as applicable) shall be agreed upon between the Operating Partnership
and the applicable Agent(s) and specified in a pricing supplement to the
Prospectus (each, a "Pricing Supplement") to be prepared by the Operating
Partnership in connection with each sale of Notes. Except as otherwise
specified in the applicable Pricing Supplement, the Notes will be issued in
denominations of U.S. $1,000 or any larger amount that is an integral multiple
of U.S. $1,000. The Agents and the Operating Partnership agree to perform, and
the Operating Partnership agrees to cause the Trustee to agree to perform,
their respective duties and obligations specifically provided to be performed
by them in the Administrative Procedures set forth in Exhibit B hereto (the
"Procedures").
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SECTION 4. Covenants of the Operating Partnership.
Each of the Operating Partnership and the Company covenants and agrees
with each Agent as follows:
(a) Preparation of Pricing Supplements. The Operating Partnership
will prepare, with respect to any Notes to be sold to or through one or more
Agents pursuant to this Agreement, a Pricing Supplement with respect to such
Notes in a form previously approved by the Agents. The Operating Partnership
will use its best efforts to deliver such Pricing Supplement no later than
11:00 a.m., New York City time, on the business day following the date of the
Operating Partnership's acceptance of the offer for the purchase of such Notes
and will file such Pricing Supplement pursuant to Rule 424(b)(3) under the 1933
Act not later than the close of business of the Commission on the fifth
business day after the date on which such Pricing Supplement is first used.
(b) Notice of Certain Events. The Operating Partnership will
notify the Agents immediately, and confirm such notice in writing, of (i) the
effectiveness of any post-effective amendment to the Registration Statement or
the filing of any amendment or supplement to the Prospectus (other than any
amendment or supplement thereto providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of securities
other than the Notes), (ii) the receipt of any comments from the Commission
with respect to the Registration Statement or the Prospectus, including any
documents incorporated therein by reference, (iii) any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (iv) 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 initiation of any proceedings for that
purpose or (v) any change in the rating assigned by any nationally recognized
statistical rating organization to the Program or any Debt Securities
(including the Notes) of the Operating Partnership, or the public announcement
by any nationally recognized statistical rating organization that it has under
surveillance or review, with possible negative implications, its rating of the
Program or any such Debt Securities, or the withdrawal by any nationally
recognized statistical rating organization of its rating of the Program or any
such Debt Securities. The Operating Partnership will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(c) Filing or Use of Amendments. The Operating Partnership will
give the Agents advance notice of its intention to file or prepare any
additional registration statement with respect to the registration of
additional Notes, any amendment to the Registration Statement (including any
filing under Rule 462(b) of the 1933 Act Regulations) or any amendment or
supplement to the prospectus included in the Registration Statement at the time
it became effective or to the Prospectus (other than an amendment or supplement
thereto providing solely for the determination of the variable terms of the
Notes or relating solely to the offering of securities other than the Notes),
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish to
the Agents copies of any such document a reasonable amount of time prior to
such proposed filing or use, as
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the case may be, and will not file any such document to which the Agents or
counsel for the Agents shall reasonably object.
(d) Delivery of the Registration Statement. The Operating
Partnership has furnished to each Agent and to counsel for the Agents, without
charge, as many conformed 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 conformed copies of all consents and
certificates of experts. Copies of the Registration Statement and each
amendment thereto furnished to the Agents will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(e) Delivery of the Prospectus. The Operating Partnership will
deliver to each Agent, without charge, as many copies of each preliminary
prospectus as such Agent 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 Agent, without charge, such
number of copies of the Prospectus (as amended or supplemented) as such Agent
may reasonably request. The Prospectus and any amendments or supplements
thereto furnished to the Agents will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(f) Revisions of Prospectus -- Material Changes. Except as
otherwise provided in subsection (m) of this Section 4, if at any time during
the term of this Agreement any event shall occur or condition shall exist as a
result of which it is necessary, in the reasonable opinion of counsel for the
Agents or counsel for the Operating Partnership, to amend the Registration
Statement in order that the Registration Statement 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 or to
amend or supplement the Prospectus in order that the Prospectus will not
contain an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading in light of the
circumstances existing at the time the Prospectus is delivered to a purchaser,
or if it shall be necessary, in the reasonable opinion of either such counsel,
to amend the Registration Statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Operating Partnership shall give immediate notice, confirmed
in writing, to the Agents to cease the solicitation of offers for the purchase
of Notes in their capacity as agents and to cease sales of any Notes they may
then own as principal, and the Operating Partnership will promptly prepare and
file with the Commission, subject to Section 4(c) hereof, such amendment or
supplement, in form and substance reasonably satisfactory to counsel for the
Agents, as may be necessary to correct such statement or omission or to make
the Registration Statement and Prospectus comply with such requirements, and
the Operating Partnership will furnish to the Agents, without charge, such
number of copies of such amendment or supplement as the Agents may reasonably
request. In addition, the Operating Partnership will comply with the 1933 Act,
the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations so as to
permit the completion of the distribution of each offering of Notes.
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<PAGE> 20
(g) Prospectus Revisions -- Periodic Financial Information.
Except as otherwise provided in subsection (m) of this Section 4, on or prior
to the date on which there shall be released to the general public interim
financial statement information related to the Operating Partnership with
respect to each of the first three quarters of any fiscal year or preliminary
financial statement information with respect to any fiscal year, the Operating
Partnership shall furnish such information to the Agents, confirmed in writing,
and shall cause the Prospectus to include or incorporate by reference financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for an understanding thereof
or as shall be required by the 1933 Act or the 1933 Act Regulations.
(h) Prospectus Revisions -- Audited Financial Information. Except
as otherwise provided in subsection (m) of this Section 4, on or prior to the
date on which there shall be released to the general public financial
information included in or derived from the audited consolidated financial
statements of the Operating Partnership for the preceding fiscal year, the
Operating Partnership shall furnish such information to the Agents, confirmed
in writing, and shall cause the Prospectus to include or incorporate by
reference such audited consolidated financial statements and the report or
reports, and consent or consents to such inclusion or incorporation by
reference, of the independent accountants with respect thereto, as well as such
other information and explanations as shall be necessary for an understanding
of such consolidated financial statements or as shall be required by the 1933
Act or the 1933 Act Regulations.
(i) Earning Statements. The Operating Partnership will timely
file such reports pursuant to the 1934 Act as are necessary in order to make
generally available to its securityholders as soon as practicable an earning
statement for the purposes of, and to provide the benefits contemplated by, the
last paragraph of Section 11(a) of the 1933 Act.
(j) Use of Proceeds. The Operating Partnership will use the net
proceeds received by it from the issuance and sale of the Notes in the manner
specified in the Prospectus.
(k) Restriction on Offers and Sales of Securities. Unless
otherwise agreed upon between one or more Agents acting as principal and the
Operating Partnership, between the date of the agreement by such Agent(s) to
purchase the related Notes from the Operating Partnership and the Settlement
Date with respect thereto, the Operating Partnership will not, without the
prior written consent of such Agent(s), issue, sell, offer or contract to sell,
grant any option for the sale of, or otherwise dispose of, any debt securities
of the type which could be offered under the Program of the Operating
Partnership (other than the Notes that are to be sold pursuant to such
agreement or commercial paper in the ordinary course of business).
(l) Reporting Requirements. The Operating Partnership, during the
period when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act in connection with sales of the Notes, will file all documents
required to be filed with the Commission pursuant to Sections 13, 14 and 15 of
the 1934 Act within the time periods prescribed by the 1934 Act and the 1934
Act Regulations.
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(m) Suspension of Certain Obligations. The Operating Partnership
shall not be required to comply with the provisions of subsection (f), (g) or
(h) of this Section 4 during any period from the time (i) the Operating
Partnership requests that the Agents shall have suspended solicitation of
offers for the purchase of Notes in their capacity as agents (provided,
however, that such suspension shall be automatic, unless an Agent is holding
Notes as principal as described in clause (ii) below, from the time the
Operating Partnership shall have released to the general public interim or
audited financial information as described in Sections 4(g) or (h) until the
earlier to occur of (a) the filing of a Quarterly Report on Form 10-Q or an
Annual Report on Form 10-K, (b) the filing of the general public interim or
audited financial information as described in Sections 4(g) or (h) pursuant to
a Current Report on Form 8-K or (c) a verbal request by the Operating
Partnership to any Agent that such Agent resume solicitation of offers for the
purchase of Notes) and (ii) no Agent shall then hold any Notes purchased from
the Operating Partnership as principal less than 180 days prior to such date
(unless, in the discretion of any Agent then holding Notes as principal, such
Agent waives the requirements of this clause (ii)), as the case may be, until
the time the Operating Partnership shall determine that solicitation of offers
for the purchase of Notes should be resumed or an Agent shall subsequently
purchase Notes from the Operating Partnership as principal.
SECTION 5. Payment of Expenses.
The Operating Partnership will pay all expenses incident to the
performance of its obligations under this Agreement, including: (a) the
preparation, filing, printing and delivery of the Registration Statement
(including financial statements and exhibits) as originally filed and all
amendments thereto and any preliminary prospectus, the Prospectus and any
amendments or supplements thereto; (b) the preparation and delivery of this
Agreement, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale and delivery of the Notes; (c) the
preparation, issuance and delivery of the Notes, including any fees and
expenses relating to the eligibility and issuance of Notes in book-entry form
and the cost of obtaining CUSIP or other identification numbers for the Notes;
(d) the reasonable fees and disbursements of the Operating Partnership's
accountants, counsel and other advisors or agents (including any calculation
agent or exchange rate agent) and of the fees and disbursements of the Trustee;
(e) the reasonable fees and disbursements of counsel to the Agents incurred in
connection with the establishment of the Program and incurred from time to time
in connection with the transactions contemplated hereby; (f) the fees charged
by nationally recognized statistical rating organizations for the rating of the
Program and the Notes; (g) the fees and expenses incurred in connection with
any listing of Notes on a securities exchange; (h) the filing fees incident to,
and the reasonable fees and disbursements of counsel to the Agents in
connection with, the review, if any, by the NASD of the terms of the sale of
the Notes; (i) any advertising and other out-of-pocket expenses of the Agents
relating to the Notes reasonably incurred with the approval of the Operating
Partnership; and (j) the preparation, issuance and delivery to the Depository
Trust Company for credit to the accounts of the Agent(s) of any global note
registered in the name of Cede & Co., as nominee for the Depository Trust
Company.
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SECTION 6. Conditions of Agents' Obligations.
The obligations of one or more Agents to purchase Notes from the
Operating Partnership as principal and to solicit offers for the purchase of
Notes as an agent of the Operating Partnership, and the obligations of any
purchasers of Notes sold through an Agent as an agent of the Operating
Partnership, will be subject to the accuracy of the representations and
warranties on the part of the Operating Partnership herein contained or
contained in any certificate of an officer of the Operating Partnership, the
Company or any Subsidiary delivered pursuant to the provisions hereof, to the
performance and observance by the Operating Partnership of its covenants and
other obligations hereunder, and to the following additional conditions
precedent:
(a) (i) The Registration Statement (including any Rule 462(b)
Registration Statement) shall be effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act and no proceedings for that purpose shall have been
instituted or shall be pending 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 Agents, (ii) the
rating assigned by any nationally recognized statistical rating organization to
the Notes or any Debt Securities of the Operating Partnership as of the
applicable Representation Date shall not have been lowered since such date nor
shall any such rating organization have publicly announced that it has placed
the Notes or any Debt Securities of the Operating Partnership on what is
commonly termed a "watch list" for possible downgrading; and (iii) there shall
not have come to an Agent's attention any facts that would cause such Agent to
reasonably believe that the Prospectus, together with the applicable Prospectus
Supplement, at the time it was required to be delivered to purchasers of the
Notes, 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) The Agents shall have received the opinion, dated as of the
date hereof, of King & Spalding, counsel for the Company, the Operating
Partnership and the Subsidiaries, in form and substance satisfactory to counsel
for the Agents, 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. and any Significant Subsidiary within the
meaning of Rule 1-02 of Regulation S-X (collectively, the
"Significant Subsidiaries") has been duly formed and is
validly existing and in good standing
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<PAGE> 23
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 as set forth in the Registration Statement
or Prospectus or 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
each Significant Subsidiary is as described in the
Registration Statement or Prospectus.
(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 (1) applicable
bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer, or similar laws affecting creditors'
rights generally from time to time in effect and (2) general
principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity). However, we express no opinion as to the effect on
enforceability of (A) requirements that a claim with respect
to any Notes payable other than in U.S. dollars (or a foreign
or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law or (B)
federal or state law limiting, delaying or prohibiting the
making of payments outside the United States.
(iv) The Notes 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 this Agreement,
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 (1) applicable
bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer, or similar laws affecting creditors'
rights generally from time to time in effect and (2) general
principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity). However, we express no opinion as to the effect on
enforceability of (A) requirements that a claim with respect
to any Notes payable other than in U.S. dollars (or a foreign
or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law or (B)
federal or state
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<PAGE> 24
law limiting, delaying or prohibiting the making of payments
outside the United States.
(v) This Agreement 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.
(vi) The execution and delivery of this
Agreement by the Operating Partnership, and the performance
by the Operating Partnership of its obligations hereunder and
the consummation of the transactions contemplated hereunder,
did not, do not and will not conflict with or constitute a
breach or violation of, or default under: (A) to the
knowledge of counsel, any instrument or agreement filed or
incorporated by reference as an exhibit to the Registration
Statement 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; (B) the certificate
of limited partnership or partnership agreement of the
Operating Partnership; or (C) to the knowledge of counsel,
any applicable law, rule, order, administrative regulation or
administrative or court decree, except that no opinion is
expressed under this clause (C) as to the 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 Notes 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 Indenture or the Notes,
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 or the rules of the NASD in connection
with the offer and sale of the Notes.
(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 Significant 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 Significant Subsidiary or any such
property, could reasonably be
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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 Significant 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," "Description of Notes,"
"Certain United States Federal Income Tax Considerations" 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 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 supporting schedules and other financial
information and data included or incorporated by reference
therein or the Statement of 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 supporting schedules and other financial information and
data 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 each of its taxable years beginning
with the year ended December 31, 1993, and its current
organization and method of operation should enable it to
continue to meet the requirements for qualification and
taxation as a REIT.
(xvi) The Operating Partnership and each
Significant Subsidiary that is a partnership ("Subsidiary
Partnership") are properly classified as partnerships, and
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<PAGE> 26
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) The Agents shall have received the opinion, dated as of the
date hereof, of Hogan & Hartson L.L.P., counsel for the Agents, 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 "Description of Notes"), and (xiii) of Section 6(b) above.
(d) In rendering their opinions required by Sections 6(b) and
6(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 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 this Agreement, 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 6(b) and 6(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 the Company 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
Agents. In giving their belief required in this Section 6(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) On the date hereof, there shall not have been, 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 or business prospects of the Operating Partnership
and its Subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, and the Agents shall have received a
certificate of the President or a Vice President of the
26
<PAGE> 27
Company and of the chief financial officer and chief accounting officer of the
Company, dated as of the date hereof, to the effect that (i) there has been no
such material adverse change, (ii) the representations and warranties of the
Operating Partnership herein contained are true and correct with the same force
and effect as though expressly made at and as of the date of such certificate,
(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 date
of such certificate, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or, to the best of such officers' knowledge, are
threatened by the Commission.
(f) The Agents shall have received a letter from Price Waterhouse
LLP, dated as of the date hereof, in form and substance satisfactory to the
Agents, 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 the date of
the latest available consolidated interim financial data, 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 at the date of the latest available
consolidated interim financial data, 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; (iv) based upon inquiries of
certain officials of the Company who have responsibility for financial and
accounting matters, nothing came to our attention that (A) there was any change
at a specified date not more than five days prior to the date hereof in the
capital stock, increase in debt or any decreases in consolidated net assets,
stockholders' equity and accumulated earnings,
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<PAGE> 28
partners' equity, as applicable, of the Company as compared with amounts shown
on the most recent consolidated balance sheets included or incorporated by
reference in the Registration Statement and the Prospectus, or (B) for the
period from the date of the latest available consolidated interim financial
data to a specified date not more than five days prior to the date hereof,
there were any decreases, as compared with the corresponding period in the
preceding year, in consolidated revenues or in the total amount of income
before extraordinary items or of net income, except in all instances for
changes or decreases which the Registration Statement and Prospectus discloses
have occurred or may occur and (v) 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 the Agents, 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) The Agents shall have received a letter from Ernst & Young
LLP dated as of the date hereof, in form and substance satisfactory to the
Agents, to the effect that: (i) they are independent accountants with respect
to Columbus Realty Trust ("Columbus") and its subsidiaries within the meaning
of the 1933 Act and the 1933 Act Regulations; (ii) it is their opinion that the
consolidated financial statements and supporting schedules included or
incorporated by reference in the Registration Statement and the Prospectus and
covered by their opinions therein comply in form in all material respects with
the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations; (iii) based upon limited procedures set forth in detail in such
letter (which shall include, without limitation, the procedures specified by
the American Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim Financial
Information, with respect to the unaudited financial statements of Columbus
included or incorporated by reference in the Registration Statement), nothing
has come to their attention which causes them to believe that, (A) any material
modifications should be made to the unaudited consolidated financial statements
included or incorporated by reference in the Registration Statement for them to
be in conformity with GAAP or (B) the unaudited consolidated financial
statements included or incorporated by reference in the Registration Statement
do not comply as to form in all material respects with the applicable
accounting requirements of the 1934 Act as it applies to Form 10-Q and the
related published rules and regulations or (C) at the date of the latest
available consolidated interim financial data, there has been any change in the
capital stock of Columbus or in the consolidated long term debt of Columbus or
any decrease in the consolidated net current assets of Columbus, as compared
with the amounts shown in the most recent consolidated balance sheet included
or incorporated by reference in the Registration Statement and the Prospectus
or, during the period from the date of the most recent consolidated statement
of operations included or incorporated by reference in the Registration
Statement and the Prospectus at the date of the latest available consolidated
interim financial data, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated revenues, or
decrease in consolidated income before extraordinary items or consolidated
income before extraordinary items per share of common stock or in consolidated
net income or consolidated net income per share of common stock of Columbus,
except in all instances for
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changes, increases or decreases which the Registration Statement and the
Prospectus disclose have occurred or may occur; and (iv) based upon inquiries
of certain officials of Columbus who have responsibility for financial and
accounting matters, nothing came to our attention that (A) there was any change
at a specified date not more than five days prior to the date hereof in the
capital stock, increase in long-term debt or any decreases in consolidated net
current assets or equity of Columbus as compared with amounts shown on the most
recent consolidated balance sheets included or incorporated by reference in the
Registration Statement and the Prospectus, or (B) for the period from the date
of the latest available consolidated interim financial data to a specified date
not more than five days prior to the date hereof, there were any decreases, as
compared with the corresponding period in the preceding year, in consolidated
revenues or in the total or per-share amounts of consolidated income before
extraordinary items or of consolidated net income, except in all instances for
changes or decreases which the Registration Statement and Prospectus disclose
have occurred or may occur.
(h) On the date hereof, counsel to the Agents shall have been
furnished with such documents and opinions as such counsel may require for the
purpose of enabling such counsel to pass upon the issuance and sale of Notes as
herein contemplated, or in order to evidence the accuracy of any of the
representations and 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 Notes as herein contemplated shall be
satisfactory in form and substance to the Agents and to counsel to the Agents.
(i) If any condition specified in this Section 6 shall not have
been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the applicable Agent or Agents by notice to the Operating
Partnership at any time and any such termination shall be without liability of
any party to any other party except as provided in Section 5 hereof and except
that Sections 9, 10, 11, 15 and 16 hereof shall survive any such termination
and remain in full force and effect.
SECTION 7. Delivery of and Payment for Notes Sold through an Agent as
Agent.
Delivery of Notes sold through an Agent as an agent of the Operating
Partnership shall be made by the Operating Partnership to such Agent for the
account of any purchaser only against payment therefor in immediately available
funds. In the event that a purchaser shall fail either to accept delivery of or
to make payment for a Note on the date fixed for settlement, such Agent shall
promptly notify the Operating Partnership and deliver such Note to the
Operating Partnership and, if such Agent has theretofore paid the Operating
Partnership for such Note, the Operating Partnership will promptly return such
funds to such Agent. If such failure has occurred for any reason other than
default by such Agent in the performance of its obligations hereunder, the
Operating Partnership will reimburse such Agent on an equitable basis for its
loss of the use of the funds for the period such funds were credited to the
Operating Partnership's account.
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SECTION 8. Additional Covenants of the Operating Partnership.
The Operating Partnership further covenants and agrees with each Agent
as follows:
(a) Reaffirmation of Representations and Warranties. Each
acceptance by the Operating Partnership of an offer for the purchase of Notes
(whether to one or more Agents as principal or through an Agent as agent), and
each delivery of Notes (whether to one or more Agents as principal or through
an Agent as agent), shall be deemed to be an affirmation that the
representations and warranties of the Operating Partnership herein contained
and contained in any certificate theretofore delivered to the Agents pursuant
hereto are true and correct at the time of such acceptance or sale, as the case
may be, and an undertaking that such representations and warranties will be
true and correct at the time of delivery to such Agent(s) or to the purchaser
or its agent, as the case may be, of the Notes relating to such acceptance or
sale, as the case may be, as though made at and as of each such time (it being
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each such
time, other than an amendment or supplement relating to the offering of
securities other than the Notes).
(b) Subsequent Delivery of Certificates. Each time that (i) the
Operating Partnership shall file a Form 10-K or Form 10-Q with the Commission,
unless otherwise waived by the Agents, (ii) the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for the determination of the variable terms of the
Notes, the filing of a Form 10-K or Form 10-Q with the Commission or relating
solely to the offering of securities other than the Notes), if requested in
writing by the Agent or Agents, (iii) (if requested in writing by the Agent or
Agents) the Operating Partnership sells Notes to one or more Agents as
principal or (iv) the Operating Partnership sells Notes in a form not
previously certified to the Agents by the Operating Partnership, the Operating
Partnership shall furnish or cause to be furnished to the Agent(s) forthwith a
certificate dated the date of filing with the Commission or the date of
effectiveness of such amendment or supplement, as applicable, or the date of
such sale, as the case may be, in form satisfactory to the Agent(s) to the
effect that the statements contained in the certificate referred to in Section
6(e) hereof which were last furnished to the Agents are true and correct at the
time of the filing or effectiveness of such amendment or supplement, as
applicable, or the time of such sale, as the case may be, as though made at and
as of such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, a certificate of the same tenor as the
certificate referred to in Section 6(e) hereof, modified as necessary to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such certificate (it being understood that, in the case
of clause (iii) above, any such certificate shall also include a certification
that there has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Operating Partnership and its Subsidiaries considered as one enterprise since
the date of the agreement by such Agent(s) to purchase Notes from the Operating
Partnership as principal).
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
Operating Partnership shall file a Form 10-K or Form 10-Q with the Commission,
unless otherwise waived by
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the Agents, (ii) the Registration Statement or the Prospectus shall be amended
or supplemented (other than by an amendment or supplement providing solely for
the determination of the variable terms of the Notes, the filing of a Form 10-K
or Form 10-Q with the Commission or relating solely to the offering of
securities other than the Notes), if requested in writing by the Agent or
Agents, (iii) (if requested in writing by the Agent or Agents) the Operating
Partnership sells Notes to one or more Agents as principal or (iv) the
Operating Partnership sells Notes in a form not previously certified to the
Agents by the Operating Partnership, the Operating Partnership shall furnish or
cause to be furnished forthwith to the Agent(s) and to counsel to the Agents
the written opinion of King & Spalding, counsel to the Operating Partnership,
or other counsel reasonably satisfactory to the Agent(s), dated the date of
filing with the Commission or the date of effectiveness of such amendment or
supplement, as applicable, or the date of such sale, as the case may be, in
form and substance reasonably satisfactory to the Agent(s), of the same tenor
as the opinion referred to in Section 6(b) hereof, but modified, as necessary,
to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion or, in lieu of such
opinion, counsel last furnishing such opinion to the Agents shall furnish the
Agent(s) with a letter substantially to the effect that the Agent(s) may rely
on such last opinion to the same extent as though it was dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such letter authorizing reliance);
except for the opinion required under Section 6(b)(xv).
(d) Subsequent Delivery of Comfort Letters. Each time that (i)
the Operating Partnership shall file a Form 10-K or a Form 10-Q with the
Commission, unless otherwise waived by the Agents, (ii) the Registration
Statement or the Prospectus shall be amended or supplemented (other than by an
amendment or supplement providing solely for the determination of the variable
terms of the Notes, the filing of a Form 10-K or Form 10-Q with the Commission
or relating solely to the offering of securities other than the Notes) if
requested in writing by the Agent or Agents or (iii) (if requested in writing
by the Agent or Agents) the Operating Partnership sells Notes to one or more
Agents as principal, the Operating Partnership shall cause Price Waterhouse
L.L.P. or such other accounting firm that has certified the financial
statements and supporting schedules included in or incorporated by reference
into the Registration Statement and the Prospectus forthwith to furnish to the
Agent(s) a letter, dated the date of filing with the Commission or the date of
effectiveness of such amendment or supplement, as applicable, or the date of
such sale, as the case may be, in form reasonably satisfactory to the Agent(s),
of the same tenor as the letter referred to in Sections 6(f) and (g) hereof but
modified to relate to the Registration Statement and Prospectus as amended and
supplemented to the date of such letter.
SECTION 9. Indemnification.
(a) Indemnification of the Agents. The Operating Partnership
agrees to indemnify and hold harmless each Agent and each person, if any, who
controls such Agent within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act and any director, officer, employee or affiliate thereof, as
follows:
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<PAGE> 32
(i) 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 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;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, provided that (subject to Section 9(d) hereof) any such
settlement is effected with the written consent of the Operating
Partnership; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by such
Agent), 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 subparagraph (i) or (ii) above;
provided, however, that this indemnity shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Operating Partnership by
the Agents expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto).
(b) Indemnification of Operating Partnership, Directors and
Officers. Each Agent 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 Section 9(a) hereof, 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 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 the Agents expressly for use in the
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<PAGE> 33
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to
Section 9(b) above, counsel to the indemnified parties shall be selected by the
Operating Partnership. An indemnifying party may participate at its own expense
in the defense of such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party)
also be counsel to the indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition
to any one local counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 9 or 10 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from
all liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 9(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 10. Contribution.
If the indemnification provided for in Section 9 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Operating Partnership, on the one
hand, and the applicable Agent(s), on the other hand, from the offering of the
Notes that were the subject of the claim for indemnification or (ii) if
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<PAGE> 34
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Operating
Partnership, on the one hand, and the applicable Agent(s), 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 applicable Agent(s), on the other hand, in connection with
the offering of the Notes that were the subject of the claim for
indemnification shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of such Notes (before deducting expenses)
received by the Operating Partnership and the total discount or commission
received by each applicable Agent, as the case may be, bears to the aggregate
initial offering price of such Notes.
The relative fault of the Operating Partnership, on the one hand, and
the applicable Agent(s), on the other hand, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Operating Partnership or by the applicable
Agent(s) and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Operating Partnership and the Agents agree that it would not be
just and equitable if contribution pursuant to this Section 10 were determined
by pro rata allocation (even if the applicable Agent(s) 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
10. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 10 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any
applicable untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 10, no Agent shall be
required to contribute any amount in excess of the amount by which the total
discount or commission received by such Agent in connection with the offering
of the Notes that were the subject of the claim for indemnification exceeds the
amount of any damages which such Agent has otherwise been required to pay by
reason of any applicable 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.
In addition, in connection with an offering of Notes purchased from
the Operating Partnership by two or more Agents as principal, the respective
obligations of such Agents to contribute pursuant to this Section 10 are
several, and not joint, in proportion to the aggregate
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<PAGE> 35
principal amount of Notes that each such Agent has agreed to purchase from the
Operating Partnership.
For purposes of this Section 10, each person, if any, who controls an
Agent 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 Agent, and each
person, if any, who controls the Operating Partnership within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Operating Partnership.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
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
investigation made by or on behalf of any of the Agents or any controlling
person of an Agent, or by or on behalf of the Company and the Operating
Partnership, and shall survive each delivery of and payment for the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
agreement by one or more Agents to purchase Notes from the Operating
Partnership as principal) may be terminated for any reason, at any time by
either the Operating Partnership or an Agent, as to itself, upon the giving of
30 days' prior written notice of such termination to the other party hereto,
but without prejudice to any rights, obligations or liabilities of any party
hereto accrued or incurred prior to such termination.
(b) Termination of Agreement to Purchase Notes as Principal. The
applicable Agent(s) may terminate any agreement by such Agent(s) to purchase
Notes from the Operating Partnership as principal, immediately upon notice to
the Operating Partnership, at any time prior to the Settlement Date relating
thereto, if (i) there has been, since the date of such 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 Notes 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 the judgment of such Agent(s),
impracticable to market such Notes or enforce contracts for the sale of such
Notes, 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 or the American Stock Exchange has
been suspended or limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by
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<PAGE> 36
either of said exchanges or by order of the Commission or any other
governmental authority, or (iv) a banking moratorium has been declared by
either Federal or New York authorities or if the Notes are denominated or
payable in, or indexed to, one or more foreign or composite currencies, by the
relevant authorities in the related country or countries, or (v) the rating
assigned by any nationally recognized statistical rating organization to the
Program or any Debt Securities (including the Notes) of the Operating
Partnership as of the date of such 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, the Program or any such debt
securities of the Operating Partnership on what is commonly termed a "watch
list" for possible downgrading.
(c) General. In the event of any such termination, such
termination shall be without liability of any party to any other party except
that (i) the Agents shall be entitled to any commissions earned in accordance
with the third paragraph of Section 3(b) hereof, (ii) if at the time of
termination (a) any Agent shall own any Notes purchased by it from the
Operating Partnership as principal or (b) an offer to purchase any of the Notes
has been accepted by the Operating Partnership but the time of delivery to the
purchaser or his agent of such Notes relating thereto has not occurred, the
covenants set forth in Sections 4 and 8 hereof shall remain in effect until the
earlier of (A) such Notes are so resold or delivered or (B) 180 days, as the
case may be, and (iii) the covenant set forth in Section 4(i) hereof, the
provisions of Section 5 hereof, the indemnity and contribution agreements set
forth in Sections 9 and 10 hereof, and the provisions of Sections 11, 15 and 16
hereof shall survive such termination and remain in full force and effect.
SECTION 13. Default by One or More of the Agents.
If the Operating Partnership and two or more Agents enter into an
agreement pursuant to which such Agents agree to purchase Notes from the
Operating Partnership as principal and one or more of such Agents shall fail at
the Settlement Date to purchase the Notes which it or they are obligated to
purchase (the "Defaulted Notes"), then the nondefaulting Agents shall have the
right, within 24 hours thereafter, to make arrangements for one of them or one
or more other Agents to purchase all, but not less than all, of the Defaulted
Notes in such amounts as may be agreed upon and upon the terms herein set
forth; provided, however, that if such arrangements shall not have been
completed within such 24-hour period, then:
(i) if the aggregate principal amount of Defaulted Notes
does not exceed 10% of the aggregate principal amount of Notes to be
so purchased by all of such Agents on the Settlement Date, the
nondefaulting Agents shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their
respective initial underwriting obligations bear to the underwriting
obligations of all nondefaulting Agents, or
(ii) if the aggregate principal amount of Defaulted Notes
exceeds 10% of the aggregate principal amount of Notes to be so
purchased by all of such Agents on the Settlement Date, such agreement
shall terminate without liability on the part of any nondefaulting
Agent.
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<PAGE> 37
No action taken pursuant to this paragraph shall relieve any defaulting Agent
from liability in respect of its default.
In the event of any such default which does not result in a
termination of such agreement, either the nondefaulting Agents or the Operating
Partnership shall have the right to postpone the Settlement Date 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 14. 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 Agents shall be directed to
Merrill Lynch at Merrill Lynch World Headquarters, World Financial Center,
North Tower - 10th Floor, New York, New York 10281- 1310, attention: MTN
Product Management, and J.P. Morgan Securities Inc., 60 Wall Street,
Medium-Term Note Desk - 3rd Floor, New York, New York 10260 and notices to the
Company and the Operating Partnership shall be directed to them at 3350
Cumberland Circle, N.W., Suite 2200, Atlanta, Georgia 30339, attention: John T.
Glover, President.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Operating Partnership and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons, officers and directors
referred to in Sections 9 and 10 hereof and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and their respective successors, and
said controlling persons, officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Notes from any Agent shall be deemed to be a successor by
reason merely of such purchase.
SECTION 16. GOVERNING LAW; FORUM.
THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. ANY SUIT, ACTION OR
PROCEEDING BROUGHT BY THE OPERATING PARTNERSHIP AGAINST ANY AGENT IN CONNECTION
WITH OR ARISING UNDER THIS AGREEMENT SHALL BE BROUGHT SOLELY IN THE STATE OR
FEDERAL COURT
37
<PAGE> 38
OF APPROPRIATE JURISDICTION LOCATED IN THE BOROUGH OF MANHATTAN, THE CITY OF
NEW YORK.
SECTION 17. Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
SECTION 18. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
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<PAGE> 39
If the foregoing is in accordance with the Agents' understanding of
our agreement, please sign and return to the Operating Partnership a
counterpart hereof, whereupon this Distribution Agreement, along with all
counterparts, will become a binding agreement among the Agents 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: Chief Operating Officer
CONFIRMED AND ACCEPTED,
AS OF THE DATE FIRST ABOVE WRITTEN:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Scott Primrose
-----------------------------------
Authorized Signatory
J.P. MORGAN SECURITIES INC.
By: /s/ Keysha Bailey
-----------------------------------
Authorized Signatory
39
<PAGE> 40
EXHIBIT A
The following terms, if applicable, shall be agreed to by one or more
Agents and the Operating Partnership in connection with each sale of Notes:
Principal Amount: $_______
(or principal amount of foreign currency or composite
currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
o LIBOR Reuters Page:
o LIBOR Telerate Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
[ ] Weekly Average
[ ] Monthly Average
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Default Rate:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
<PAGE> 41
Price to Public: ___%, plus accrued interest, if any, from ___________
Issue Price:
Settlement Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Operating Partnership
by one or more Agents as principal, agreement as to whether the following will
be required:
Officers' Certificate pursuant to Section 8(b) of the Distribution
Agreement. Legal Opinions pursuant to Section 8(c) of the Distribution
Agreement. Comfort Letter pursuant to Section 8(d) of the Distribution
Agreement. Stand-off Agreement pursuant to Section 4(k) of the
Distribution Agreement.
<PAGE> 42
SCHEDULE A
As compensation for the services of the Agents hereunder, the
Operating Partnership shall pay the applicable Agent, on a discount basis, a
commission for the sale of each Note equal to the principal amount of such Note
multiplied by the appropriate percentage set forth below:
<TABLE>
<CAPTION>
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
<S> <C>
From 9 months to less than 1 year .................... .125%
From 1 year to less than 18 months ................... .150
From 18 months to less than 2 years .................. .200
From 2 years to less than 3 years .................... .250
From 3 years to less than 4 years .................... .350
From 4 years to less than 5 years .................... .450
From 5 years to less than 6 years .................... .500
From 6 years to less than 7 years .................... .550
From 7 years to less than 10 years ................... .600
From 10 years to less than 15 years .................. .625
From 15 years to less than 20 years .................. .700
From 20 years to 30 years ............................ .750
Greater than 30 years ................................ *
</TABLE>
- ----------------------
* As agreed to by the Operating Partnership and the applicable Agent at the time
of the sale.
<PAGE> 43
EXHIBIT B
POST APARTMENT HOMES, L.P.
ADMINISTRATIVE PROCEDURES
FOR FIXED RATE AND FLOATING RATE MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
(Dated as of October 20, 1997)
Medium-Term Notes Due Nine Months or More from Date of Issue (the
"Notes") are to be offered on a continuing basis by Post Apartment Homes, L.P.,
a Georgia limited partnership (the "Operating Partnership"), to or through
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, and
J.P. Morgan Securities Inc. (each, an "Agent" and, collectively, the "Agents")
pursuant to a Distribution Agreement, dated October 20, 1997 (the "Distribution
Agreement"), by and among the Operating Partnership and the Agents. The
Distribution Agreement provides both for the sale of Notes by the Operating
Partnership to one or more of the Agents as principal for resale to investors
and other purchasers and for the sale of Notes by the Operating Partnership
directly to investors (as may from time to time be agreed to by the Operating
Partnership and the related Agent or Agents), in which case each such Agent
will act as an agent of the Operating Partnership in soliciting offers to
purchase the Notes.
Unless otherwise agreed by the related Agent or Agents and the Operating
Partnership, Notes will be purchased by the related Agent or Agents as
principal. Such purchases will be made in accordance with terms agreed upon by
the related Agent or Agents and the Operating Partnership (which terms shall be
agreed upon orally, with written confirmation prepared promptly by the related
Agent or Agents and mailed promptly to the Operating Partnership). If agreed
upon by any Agent or Agents and the Operating Partnership, the Agent or Agents,
acting solely as agent or agents for the Operating Partnership and not as
principal, will use reasonable efforts to solicit offers to purchase the Notes.
Only those provisions in these Administrative Procedures that are applicable to
the particular role to be performed by the related Agent or Agents shall apply
to the offer and sale of the relevant Notes.
The Notes will be issued as a series of debt securities under an
Indenture, dated as of September 25, 1996, as amended, supplemented or modified
from time to time (the "Indenture"), between the Operating Partnership and
SunTrust Bank, Atlanta, as trustee (together with any successor in such
capacity, the "Trustee"). Post Properties, Inc., a Georgia corporation (the
"Company") and the Operating Partnership have filed a Registration Statement
with the Securities and Exchange Commission (the "Commission") registering,
among other things, debt securities of the Operating Partnership (which
includes the Notes) (the "Registration Statement"). The most recent base
prospectus deemed part of the Registration Statement, as supplemented with
respect to the Notes, is herein referred to as "Prospectus." The most recent
supplement to the Prospectus setting forth the purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) is herein
referred to as the "Pricing Supplement."
The Notes will either be issued (a) in book-entry form and represented by
one or more fully registered global Notes (each, a "Global Note") delivered to
the Trustee, as custodian for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC, or (b) in certificated
form (each, a "Certificated Note") delivered to the investor or other purchaser
thereof or a person designated by such investor or other purchaser.
General procedures relating to the issuance of all Notes are set forth in
Part I hereof. Additionally, Notes issued in book-entry form will be issued in
accordance with the procedures set forth in Part II hereof and Certificated
Notes will be issued in accordance with the procedures set forth in Part III
hereof. Capitalized terms
<PAGE> 44
used but not otherwise defined herein shall have the meanings ascribed thereto
in the Indenture or the Notes, as the case may be.
PART I: PROCEDURES OF GENERAL
APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date
of its authentication by the Trustee.
Each Note shall also bear an original
issue date (each, an "Original Issue
Date"). The Original Issue Date shall
remain the same for all Notes
subsequently issued upon transfer,
exchange or substitution of an original
Note regardless of their dates of
authentication.
Maturities: Each Note will mature on a date nine
months or more from its Original Issue
Date (the "Stated Maturity Date")
selected by the investor or other
purchaser and agreed to by the
Operating Partnership.
Registration: Unless otherwise specified in the
applicable Pricing Supplement, Notes
will be issued only in fully registered
form.
Denominations: Unless otherwise specified in the
applicable Pricing Supplement, the
Notes will be issued in denominations of
$1,000 and integral multiples thereof.
Interest Rate Bases: Unless otherwise specified in the
applicable Pricing Supplement, the
Notes will bear interest at (A) fixed
rates ("Fixed Rate Notes") or (B)
floating rates ("Floating Rate Notes")
determined by reference to one or more
Interest Rate Bases or formulas, as
adjusted by the Spread and/or Spread
Multiplier, if any, applicable to such
Floating Rate Notes.
Redemption/Repayment: The Notes will be subject to redemption
by the Operating Partnership in
accordance with the terms of the Notes,
which will be fixed at the time of sale
and set forth in the applicable Note
and Pricing Supplement. If no Initial
Redemption Date is specified on the
face of a Note, such Note will not be
redeemable prior to its Stated Maturity
Date.
The Notes will be subject to repayment
at the option of the Holders thereof in
accordance with the terms of the Notes,
which will be fixed at the time of sale
and set forth in the applicable Note
and Pricing Supplement. If no Optional
Repayment Date is specified on the face
of a Note, such Note will not be
repayable at the option of the Holder
prior to its Stated Maturity Date.
Calculation of Interest: Unless otherwise specified in the
applicable Pricing Supplement, interest
on each Fixed Rate Note (including
payments for partial periods) will be
calculated and paid on the basis of a
360-day year of twelve 30-day months.
<PAGE> 45
The interest rate on each Floating Rate
Note will be calculated by reference to
the specified Interest Rate Basis or
Bases plus or minus the applicable
Spread, if any, and/or multiplied by
the applicable Spread Multiplier, if
any.
Unless otherwise specified in the
applicable Pricing Supplement, interest
on each Floating Rate Note will be
calculated by multiplying its principal
amount by an accrued interest factor.
Such accrued interest factor is
computed by adding the interest factor
calculated for each day in the period
for which accrued interest is being
calculated. Unless otherwise specified
in the applicable Pricing Supplement,
the interest factor for each such day
is computed by dividing the interest
rate applicable to such day by 360 if
the CD Rate, Commercial Paper Rate,
Eleventh District Cost of Funds Rate,
Federal Funds Rate, LIBOR or Prime Rate
is an applicable Interest Rate Basis,
or by the actual number of days in the
year if the CMT Rate or Treasury Rate
is an applicable Interest Rate Basis.
The interest factor for Notes for which
the interest rate is calculated with
reference to two or more Interest Rate
Bases will be calculated in each period
in the same manner as if only the
applicable Interest Rate Basis
specified in the applicable Pricing
Supplement applied.
Interest: General. Each Note will bear interest in
accordance with its terms. Unless
otherwise specified in the applicable
Pricing Supplement, interest on each
Note will accrue from and including the
Original Issue Date of such Note for
the first interest period or from the
most recent Interest Payment Date (as
defined below) to which interest has
been paid or duly provided for all
subsequent interest periods to but
excluding the applicable Interest
Payment Date or the Stated Maturity Date
or date of earlier redemption, repayment
or acceleration of maturity or if the
maturity of the Note is extended, the
new date of maturity specified in a
notice of such exercise, as the case
may be (the Stated Maturity Date or such
earlier or later date, as the case may
be, if referred to herein as the
"Maturity Date" with respect to the
principal repayable on such date).
If an Interest Payment Date or the
Maturity Date with respect to any Fixed
Rate Note falls on a day that is not a
Business Day (as defined in the
Prospectus), the required payment to be
made on such day need not be made on
such day, but may be made on the next
succeeding Business Day with the same
force and effect as if made on such
day, and no interest shall accrue on
such payment for the period from and
after such day to the next succeeding
Business Day. If an Interest Payment
Date other than the Maturity Date with
respect to any Floating Rate Note would
otherwise fall on a day that is not a
Business Day, such Interest Payment
Date will be postponed to the next
succeeding Business Day, except that in
the case of a Note for which LIBOR is
an applicable Interest Rate Basis, if
such Business Day falls in the next
succeeding calendar month, such
Interest Payment Date will be the
immediately preceding Business Day. If
the Maturity Date with respect to any
Floating Rate Note falls on a day that
is not a Business Day, the required
payment to be made on such day need not
be made on such day, but may be made on
the next succeeding Business
<PAGE> 46
Day with the same force and effect as if
made on such day, and no interest shall
accrue on such payment for the period
from and after the Maturity Date to the
next succeeding Business Day.
Regular Record Dates. Unless otherwise
specified in the applicable Pricing
Supplement, the "Regular Record Date"
for a Note shall be the date 15
calendar days (whether or not a
Business Day) preceding the applicable
Interest Payment Date.
Interest Payment Dates. Interest
payments will be made on each Interest
Payment Date commencing with the first
Interest Payment Date following the
Original Issue Date; provided, however,
the first payment of interest on any
Note originally issued between a
Regular Record Date and an Interest
Payment Date will occur on the Interest
Payment Date immediately following the
next succeeding Regular Record Date.
Unless otherwise specified in the
applicable Pricing Supplement, interest
payments on Fixed Rate Notes will be
made semiannually in arrears on May 1
and November 1 of each year and on the
Maturity Date, while interest payments
on Floating Rate Notes will be made as
specified in the applicable Pricing
Supplement.
Acceptance and
Rejection of Offers
from Solicitation
as Agents: If agreed upon by any Agent and the
Operating Partnership, then such Agent
acting solely as agent for the
Operating Partnership and not as
principal will solicit purchases of the
Notes. Each Agent will communicate to
the Operating Partnership, orally or in
writing, each reasonable offer to
purchase Notes solicited by such Agent
on an agency basis, other than those
offers rejected by such Agent. Each
Agent has the right, in its discretion
reasonably exercised, to reject any
proposed purchase of Notes, as a whole
or in part, and any such rejection
shall not be a breach of such Agent's
agreement contained in the Distribution
Agreement. The Operating Partnership
has the sole right to accept or reject
any proposed purchase of Notes, in
whole or in part, and any such
rejection shall not constitute a breach
of the Operating Partnership's
agreement contained in the Distribution
Agreement. Each Agent has agreed to
make reasonable efforts to assist the
Operating Partnership in obtaining
performance by each purchaser whose
offer to purchase Notes has been
solicited by such Agent and accepted by
the Operating Partnership.
Preparation of
Pricing Supplement: If any offer to purchase a Note is
accepted by the Operating Partnership,
the Operating Partnership will promptly
prepare a Pricing Supplement reflecting
the terms of such Note. Information to
be included in the Pricing Supplement
shall include:
1. the name of the Operating
Partnership;
<PAGE> 47
2. the title of the Notes;
3. the date of the Pricing
Supplement and the date of the
Prospectus to which the Pricing
Supplement relates;
4. the name of the Offering Agent
(as defined below);
5. whether such Notes are being
sold to the Offering Agent as
principal or to an investor or
other purchaser through the
Offering Agent acting as agent
for the Operating Partnership;
6. with respect to Notes sold to
the Offering Agent as principal,
whether such Notes will be
resold by the Offering Agent to
investors and other purchasers
at (i) a fixed public offering
price of a specified percentage
of their principal amount or
(ii) at varying prices related
to prevailing market prices at
the time of resale to be
determined by the Offering
Agent;
7. with respect to Notes sold to an
investor or other purchaser
through the Offering Agent
acting as agent for the
Operating Partnership, whether
such Notes will be sold at (i)
100% of their principal amount
or (ii) a specified percentage
of their principal amount;
8. the Offering Agent's discount
or commission;
9. Net proceeds to the Operating
Partnership;
10. the Principal Amount, Specified
Currency, Original Issue Date,
Stated Maturity Date, Interest
Payment Date(s), Authorized
Denomination, Initial
Redemption Date, if any,
Initial Redemption Percentage,
if any, Annual Redemption
Percentage Reduction, if any,
Optional Repayment Date(s), if
any, Exchange Rate Agent, if
any, and, in the case of Fixed
Rate Notes, the Interest Rate,
and, in the case of Floating
Rate Notes, the Interest
Category, the Interest Rate
Basis or Bases, Day Count
Convention, Index Maturity (if
applicable), Initial Interest
Rate, if any, Maximum Interest
Rate, if any, Minimum Interest
Rate, if any, Initial Interest
Reset Date, Interest Reset
Dates, Spread and/or Spread
Multiplier, if any, and
Calculation Agent, and, in the
case of Discount Notes, the
Issue Price; and
11. any other additional provisions
of the Notes material to
investors or other purchasers of
the Notes not otherwise specified
in the Prospectus.
The Operating Partnership shall send
such Pricing Supplement by telecopy or
overnight express (for delivery by the
close of business on the applicable
trade date, but in no event later than
11:00 a.m., New York City time, on the
Business Day following the applicable
trade date) to the Agent which made or
presented the offer to purchase the
applicable Note (in such
<PAGE> 48
capacity, the "Offering Agent") and the
Trustee at the following applicable
address: if to Merrill Lynch, Pierce,
Fenner & Smith Incorporated, to:
Tritech Services, 40 Colonial Drive,
Piscataway, New Jersey 08854,
Attention: Nachman Kimerling/Final
Private Placement Memorandum Unit,
(908) 885-2768, telecopier: (908)
885-2774/5/6, with a copy of such
Pricing Supplement to Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, World Financial
Center, North Tower, 10th Floor, New
York, New York, 10281-1310, Attention:
MTN Product Management, (212) 449-7476,
telecopier: (212) 449-2234; if to J.P.
Morgan Securities Inc., Medium Term
Note Desk - 3rd Floor, 60 Wall Street,
New York, New York 10260, (212)
648-0591, telecopier (212) 648-5907 and
if to the Trustee, to SunTrust Bank,
Atlanta, 58 Edgewood Avenue, Suite 400,
Atlanta, Georgia 30303, Attention:
Bryan Echols, telecopier: (404)
322-3966. A copy of such Pricing
Supplement shall also be sent to Hogan
& Hartson L.L.P., Columbia Square, 555
Thirteenth Street, N.W., Washington,
D.C. 20004, Attention:
J. Warren Gorrell, Jr.
In each instance that a Pricing
Supplement is prepared, the Offering
Agent will provide a copy of such
Pricing Supplement to each investor or
purchaser of the relevant Notes or its
agent. Pursuant to Rule 434 ("Rule
434") of the Securities Act of 1933, as
amended, the Pricing Supplement may be
delivered separately from the
Prospectus. Outdated Pricing
Supplements (other than those retained
for files) will be destroyed.
Settlement: The receipt of immediately available
funds by the Operating Partnership in
payment for a Note and the
authentication and delivery of such
Note shall, with respect to such Note,
constitute "settlement". Offers
accepted by the Operating Partnership
will be settled in three Business Days,
or at such time as the purchaser, the
Offering Agent and the Operating
Partnership shall agree, pursuant to
the timetable for settlement set forth
in Parts II and III hereof under
"Settlement Procedure Timetable" with
respect to Global Notes and
Certificated Notes, respectively (each
such date fixed for settlement is
hereinafter referred to as a
"Settlement Date"). If procedures A and
B of the applicable Settlement
Procedures with respect to a particular
offer are not completed on or before
the time set forth under the applicable
"Settlement Procedures Timetable," such
offer shall not be settled until the
Business Day following the completion
of settlement procedures A and B or
such later date as the purchaser and
the Operating Partnership shall agree.
The foregoing settlement procedures may
be modified with respect to any
purchase of Notes by an Agent as
principal if so agreed by the Operating
Partnership and such Agent.
Procedure for Changing
Rates or Other
Variable Terms: When a decision has been reached to
change the interest rate or any other
variable term on any Notes being sold
by the Operating Partnership, the
<PAGE> 49
Operating Partnership will promptly
advise the Agents and the Trustee by
telephone and the Agents will forthwith
suspend solicitation of offers to
purchase such Notes. The Agents will
telephone the Operating Partnership
with recommendations as to the changed
interest rates or other variable terms.
At such time as the Operating
Partnership notifies the Agents and the
Trustee of the new interest rates or
other variable terms, the Agents may
resume solicitation of offers to
purchase such Notes. Until such time,
only "indications of interest" may be
recorded. Immediately after acceptance
by the Operating Partnership of an
offer to purchase Notes at a new
interest rate or new variable term, the
Operating Partnership, the Offering
Agent and the Trustee shall follow the
procedures set forth under the
applicable "Settlement Procedures."
<PAGE> 50
Suspension of
Solicitation;
Amendment or
Supplement: The Operating Partnership may instruct
the Agents to suspend solicitation of
offers to purchase Notes at any time.
Upon receipt of such instructions, the
Agents will forthwith suspend
solicitation of offers to purchase from
the Operating Partnership until such
time as the Operating Partnership has
advised the Agents that solicitation of
offers to purchase may be resumed. Any
notice of an amendment or supplement to
the Registration Statement or the
Prospectus required to be given by the
Operating Partnership to the Agents
pursuant to the Distribution Agreement
shall be given as so required and any
amendment or supplement to the
Registration Statement or the
Prospectus required to be delivered or
mailed to the Agents pursuant to the
Distribution Agreement shall be
delivered or mailed as so required in
quantities which such parties may
reasonably request at the following
respective addresses: if to Merrill
Lynch, Pierce, Fenner & Smith
Incorporated, World Financial Center,
North Tower, 10th Floor, New York, New
York 10281-1310, Attention: MTN Product
Management, (212) 449-7476, telecopier:
(212) 449-2234; if to J.P. Morgan
Securities Inc., Medium Term Note Desk
- 3rd Floor, 60 Wall Street, New York,
New York 10260, (212) 648-0591,
telecopier (212) 648-5907 and if to the
Trustee, to: SunTrust Bank, Atlanta, 58
Edgewood Avenue, Suite 400, Atlanta,
Georgia 30303, Attention: Bryan Echols,
telecopier: (404) 322-3966. One copy of
such amendment or supplement shall be
sent to Hogan & Hartson L.L.P.,
Columbia Square, 555 Thirteenth Street,
N.W., Washington, D.C. 20004,
Attention: J. Warren Gorrell, Jr.
In the event that at the time the
solicitation of offers to purchase from
the Operating Partnership is suspended
(other than to establish or change
interest rates or formulas, maturities,
prices or other similar variable terms
with respect to the Notes) there shall
be any offers to purchase Notes that
have been accepted by the Operating
Partnership which have not been
settled, the Operating Partnership will
promptly advise the Offering Agent and
the Trustee whether such offers may be
settled and whether copies of the
Prospectus as theretofore amended
and/or supplemented as in effect at the
time of the suspension may be delivered
in connection with the settlement of
such offers. The Operating Partnership
will have the sole responsibility for
such decision and for any arrangements
which may be made in the event that the
Operating Partnership determines that
such offers may not be settled or that
copies of such Prospectus may not be so
delivered.
Delivery of Prospectus
and applicable
Pricing Supplement: A copy of the most recent Prospectus and
the applicable Pricing Supplement,
which pursuant to Rule 434 may be
delivered separately from
<PAGE> 51
the Prospectus, must accompany or
precede the earlier of (a) the written
confirmation of a sale sent to an
investor or other purchaser or its
agent and (b) the delivery of Notes to
an investor or other purchaser or its
agent.
Authenticity of
Signatures: The Agents will have no obligation or
liability to the Operating Partnership
or the Trustee in respect of the
authenticity of the signature of any
officer, employee or agent of the
Operating Partnership or the Trustee on
any Note.
Documents Incorporated
by Reference: The Operating Partnership shall supply
the Agents with an adequate supply of
all documents incorporated by reference
in the Registration Statement and the
Prospectus.
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in book-entry form
for eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representations from the Operating Partnership and The First National Bank of
Chicago, as Paying Agent of the Trustee to DTC, dated January 14, 1997, and a
Certificate Agreement, dated May 26, 1989, between The First National Bank of
Chicago, as Paying Agent of the Trustee and DTC, as amended (the "Certificate
Agreement"), and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-
entry form having the same Original
Issue Date, Specified Currency,
Interest Rate, Interest Payment Dates,
redemption and/or repayment terms, if
any, and Stated Maturity Date
(collectively, the "Fixed Rate Terms")
will be represented initially by one or
more Global Notes; and all Floating
Rate Notes issued in book-entry form
having the same Original Issue Date,
Specified Currency, Interest Category,
formula for the calculation of interest
(including the Interest Rate Basis or
Bases, which may be the CD Rate, the
CMT Rate, the Commercial Paper Rate,
the Eleventh District Cost of Funds
Rate, the Federal Funds Rate, LIBOR,
the Prime Rate or the Treasury Rate or
any other interest rate basis or
formula, and Spread and/or Spread
Multiplier, if any), Day Count
Convention, Initial Interest Rate,
Index Maturity (if applicable), Minimum
Interest Rate, if any, Maximum Interest
Rate, if any, redemption and/or
repayment terms, if any, Interest
Payment Dates, Initial Interest Reset
Date, Interest Reset Dates and Stated
Maturity Date (collectively, the
"Floating Rate Terms") will be
represented initially by one or more
Global Notes.
For other variable terms with respect
to the Fixed Rate Notes and Floating
Rate Notes, see the Prospectus and the
applicable Pricing Supplement.
Owners of beneficial interests in
Global Notes will be entitled to
physical delivery of Certificated Notes
equal in principal amount to their
respective beneficial interests only
upon certain limited circumstances
described in the Prospectus.
<PAGE> 52
Identification: The Operating Partnership has arranged
with the CUSIP Service Bureau of
Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the
reservation of one series of CUSIP
numbers, which series consists of
approximately 900 CUSIP numbers which
have been reserved for and relate to
Global Notes and the Operating
Partnership has delivered to each of
the Trustee and DTC such list of such
CUSIP numbers. The Operating
Partnership will assign CUSIP numbers
to Global Notes as described below
under Settlement Procedure B. DTC will
notify the CUSIP Service Bureau
periodically of the CUSIP numbers that
the Operating Partnership has assigned
to Global Notes. The Trustee will
notify the Operating Partnership at any
time when fewer than 100 of the
reserved CUSIP numbers remain
unassigned to Global Notes, and, if it
deems necessary, the Operating
Partnership will reserve and obtain
additional CUSIP numbers for assignment
to Global Notes. Upon obtaining such
additional CUSIP numbers, the Operating
Partnership will deliver a list of such
additional numbers to the Trustee and
DTC. Notes issued in book-entry form in
excess of $200,000,000 (or the
equivalent thereof in one or more
foreign or composite currencies) in
aggregate principal amount and
otherwise required to be represented by
the same Global Note will instead by
represented by two or more Global Notes
which shall all be assigned the same
CUSIP number.
Registration: Unless otherwise specified by DTC, each
Global Note will be registered in the
name of Cede & Co., as nominee for DTC,
on the register maintained by the
Trustee under the Indenture. The
beneficial owner of a Note issued in
book-entry form (i.e., an owner of a
beneficial interest in a Global ----
Note) (or one or more indirect
participants in DTC designated by such
owner) will designate one or more
participants in DTC (with respect to
such Note issued in book-entry form,
the "Participants") to act as agent for
such beneficial owner in connection
with the book-entry system maintained
by DTC, and DTC will record in
book-entry form, in accordance with
instructions provided by such
Participants, a credit balance with
respect to such Note issued in
book-entry form in the account of such
Participants. The ownership interest of
such beneficial owner in such Note
issued in book-entry form will be
recorded through the records of such
Participants or through the separate
records of such Participants and one or
more indirect participants in DTC.
Transfers: Transfers of beneficial ownership
interests in a Global Note will be
accomplished by book entries made by
DTC and, in turn, by Participants (and
in certain cases, one or more indirect
participants in DTC) acting on behalf
of beneficial transferors and
transferees of such Global Note.
Exchanges: The Trustee may deliver to DTC and the
CUSIP Service Bureau at any time a
written notice specifying (a) the CUSIP
numbers of two or more Global Notes
outstanding on such date that represent
Global Notes having the same Fixed Rate
Terms or Floating Rate Terms, as the
case may be (other than Original Issue
Dates), and for which interest has been
paid to the same date; (b) a date,
occurring at least 30 days after such
written notice is
<PAGE> 53
delivered and at least 30 days before
the next Interest Payment Date for the
related Notes issued in book-entry
form, on which such Global Notes shall
be exchanged for a single replacement
Global Note; and (c) a new CUSIP
number, obtained from the Operating
Partnership, to be assigned to such
replacement Global Note. Upon receipt
of such a notice, DTC will send to its
Participants (including the Trustee) a
written reorganization notice to the
effect that such exchange will occur on
such date. Prior to the specified
exchange date, the Trustee will deliver
to the CUSIP Service Bureau written
notice setting forth such exchange date
and the new CUSIP number and stating
that, as of such exchange date, the
CUSIP numbers of the Global Notes to be
exchanged will no longer be valid. On
the specified exchange date, the
Trustee will exchange such Global Notes
for a single Global Note bearing the
new CUSIP number and the CUSIP numbers
of the exchanged Notes will, in
accordance with CUSIP Service Bureau
procedures, be canceled and immediately
reassigned. Notwithstanding the
foregoing, if the Global Notes to be
exchanged exceed $200,000,000 (or the
equivalent thereof in one or more
foreign or composite currencies ) in
aggregate principal amount, one
replacement Note will be authenticated
and issued to represent each
$200,000,000 (or the equivalent thereof
in one or more foreign or composite
currencies) in aggregate principal
amount of the exchanged Global Notes
and an additional Global Note or Notes
will be authenticated and issued to
represent any remaining principal
amount of such Global Notes (See
"Denominations" below).
Denominations: Unless otherwise specified in the
applicable Pricing Supplement, Notes
issued in book-entry form will be
issued in denominations of $1,000 and
integral multiples thereof. Each Global
Note will be denominated in an
aggregate principal amount not in
excess of $200,000,000 (or the
equivalent thereof in one or more
foreign or composite currencies). If
one or more Notes are issued in
book-entry form having an aggregate
principal amount in excess of
$200,000,000 (or the equivalent thereof
in one or more foreign or composite
currencies) and would, but for the
preceding sentence, be represented by a
single Global Note, then one Global
Note will be issued to represent each
$200,000,000 (or the equivalent thereof
in one or more foreign or composite
currencies) in aggregate principal
amount of such Notes issued in
book-entry form and an additional
Global Note will be issued to represent
any remaining aggregate principal
amount of such Notes issued in
book-entry form. In such a case, each
of the Global Notes representing Notes
issued in book-entry form shall be
assigned the same CUSIP number.
Payments of Principal
and Interest: Payments of Interest Only. Promptly
after each Regular Record Date, the
Trustee will deliver to the Operating
Partnership and DTC a written notice
specifying by CUSIP number the amount
of interest to be paid on each Global
Note on the following Interest Payment
Date (other than an Interest Payment
Date coinciding with the Maturity Date)
and the total of such amounts. DTC will
confirm the amount payable on each
Global Note on such Interest Payment
Date by reference to the daily bond
reports published by Standard & Poor's
Corporation. On such Interest Payment
Date, the
<PAGE> 54
Operating Partnership will pay to the
Trustee in immediately available funds
an amount sufficient to pay the
interest then due and owing on the
Global Notes, and upon receipt of such
funds from the Operating Partnership,
the Trustee in turn will pay to DTC
such total amount of interest due on
such Global Notes (other than on the
Maturity Date) which is payable in U.S.
dollars, at the times and in the manner
set forth below under "Manner of
Payment." The Trustee shall make
payment of that amount of interest due
and owing on any Global Notes that
Participants have elected to receive in
foreign or composite currencies
directly to such Participants.
Notice of Interest Rates. Promptly
after each Interest Determination Date
or Calculation Date, as the case may
be, for Floating Rate Notes issued in
book-entry form, the Trustee will
notify each of Moody's Investors
Service, Inc. and Standard & Poor's
Corporation of the interest rates
determined as of such Interest
Determination Date.
Payments at Maturity. On or about the
first Business Day of each month, the
Trustee will deliver to the Operating
Partnership and DTC a written list of
principal, premium, if any, and
interest to be paid on each Global Note
maturing or otherwise becoming due in
the following month. The Trustee, the
Operating Partnership and DTC will
confirm the amounts of such principal,
premium, if any, and interest payments
with respect to each such Global Note
on or about the fifth Business Day
preceding the Maturity Date of such
Global Note. On the Maturity Date, the
Operating Partnership will pay to the
Trustee in immediately available funds
an amount sufficient to make the
required payments, and upon receipt of
such funds the Trustee in turn will pay
to DTC the principal amount of Global
Notes, together with premium, if any,
and interest due on the Maturity Date,
which are payable in U.S. dollars, at
the times and in the manner set forth
below under "Manner of Payment." The
Trustee shall make payment of the
principal, premium, if any, and
interest to be paid on the Maturity
Date of each Global Note that
Participants have elected to receive in
foreign or composite currencies
directly to such Participants. Promptly
after (i) payment to DTC of the
principal, premium, if any, and
interest due on the Maturity Date of a
Global Note payable in U.S. dollars and
(ii) payment of the principal, premium,
if any, and interest due on the
Maturity Date of a Global Note to those
Participants who have elected to
receive such payments in foreign or
composite currencies, the Trustee will
cancel such Global Note and deliver it
to the Operating Partnership with an
appropriate debit advice. On the first
Business Day of each month, the Trustee
will deliver to the Operating
Partnership a written statement
indicating the total principal amount
of outstanding Global Notes as of the
close of business on the immediately
preceding Business Day.
Manner of Payment. The total amount of
any principal, premium, if any, and
interest due on Global Notes on any
Interest Payment Date or the Maturity
Date, as the case may be, which is
payable in U.S. dollars shall be paid
by the Operating Partnership to the
Trustee in funds available for use by
the Trustee no later than 10:00 a.m.,
New York City time, on such date.
<PAGE> 55
The Operating Partnership will make
such payment on such Global Notes to an
account specified by the Trustee. Upon
receipt of such funds, the Trustee will
pay by separate wire transfer (using
Fedwire message entry instructions in a
form previously specified by DTC) to an
account at the Federal Reserve Bank of
New York previously specified by DTC,
in funds available for immediate use by
DTC, each payment in U.S. dollars of
principal, premium, if any, and
interest due on Global Notes on such
date. Thereafter on such date, DTC will
pay, in accordance with its SDFS
operating procedures then in effect,
such amounts in funds available for
immediate use to the respective
Participants in whose names the
beneficial interests in such Global
Notes are recorded in the book-entry
system maintained by DTC. Neither the
Operating Partnership nor the Trustee
shall have any responsibility or
liability for the payment in U.S.
dollars by DTC of the principal of, or
premium, if any, or interest on, the
Global Notes. The Trustee shall make
all payments of principal, premium, if
any, and interest on each Global Note
that Participants have elected to
receive in foreign or composite
currencies directly to such
Participants.
Withholding Taxes. The amount of any
taxes required under applicable law to
be withheld from any interest payment
on a Global Note will be determined and
withheld by the Participant, indirect
participant in DTC or other Person
responsible for forwarding payments and
materials directly to the beneficial
owner of such Global Note.
Settlement
Procedures: Settlement Procedures with regard to
each Note in book-entry form sold by an
Agent, as agent of the Operating
Partnership, or purchased by an Agent,
as principal, will be as follows:
A. The Offering Agent will advise the
Operating Partnership by telephone,
confirmed by facsimile, of the
following settlement information:
1. Principal Amount, Authorized
Denomination and Specified
Currency.
2. Exchange Rate Agent, if any.
3. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment
Dates.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis
or Bases.
(iii) Initial Interest
Rate.
<PAGE> 56
(iv) Spread and/or
Spread Multiplier,
if any.
(v) Initial Interest
Reset Date or
Interest Reset
Dates.
(vi) Interest Payment
Dates.
(vii) Index Maturity,
if any.
(viii) Maximum and/or
Minimum Interest
Rates, if any.
(ix) Day Count
Convention.
(x) Calculation
Agent.
(c) Discount Notes:
(i) Issue Price
4. Price to public of such Note
or whether such Note is
being offered at varying
prices relating to
prevailing market prices at
time of resale as determined
by the Offering Agent.
5. Trade Date.
6. Settlement Date (Original
Issue Date).
7. Stated Maturity Date.
8. Whether the Operating
Partnership has the option to
extend the Stated Maturity
Date of the Note, and, if so
the final Maturity Date.
9. Redemption provisions, if
any.
10. Repayment provisions, if any.
11. Net proceeds to the Operating
Partnership.
12. The Offering Agent's discount
or commission.
13. Whether such Note is being
sold to the Offering Agent
as principal or to an
investor or other
purchaser through the
Offering Agent acting as
agent for the Operating
Partnership.
14. Such other information
specified with respect to
such Note (whether by
Addendum or otherwise).
<PAGE> 57
B. The Operating Partnership will
assign a CUSIP number to the Global
Note representing such Note and
then advise the Trustee by
facsimile transmission or other
electronic transmission of the
above settlement information
received from the Offering Agent,
such CUSIP number and the name of
the Offering Agent. The Operating
Partnership will also advise the
Offering Agent of the CUSIP number
assigned to the Global Note.
C. The Trustee will communicate to DTC
and the Offering Agent through
DTC's Participant Terminal System a
pending deposit message specifying
the following settlement
information:
1. The information set forth
in the Settlement Procedure A.
2. Identification numbers of the
participant accounts maintained
by DTC on behalf of the Trustee
and the Offering
Agent.
3. Identification of the Global
Note as a Fixed Rate Global Note
or Floating Rate Global Note.
4. Initial Interest Payment
Date for such Note, number of
days by which such date succeeds
the related record date for DTC
purposes (or, in the case of
Floating Rate Notes which reset
daily or weekly, the date five
calendar days preceding the
Interest Payment Date) and, if
then calculable, the amount of
interest payable on such
Interest Payment Date (which
amount shall have been confirmed
by the Trustee).
5. CUSIP number of the Global Note
representing such Note.
6. Whether such Global Note
represents any other Notes
issued or to be issued in
book-entry form.
DTC will arrange for each pending
deposit message described above to be
transmitted to Standard & Poor's
Corporation, which will use the
information in the message to include
certain terms of the related Global
Note in the appropriate daily bond
report published by Standard & Poor's
Corporation.
D. The Trustee will complete and
authenticate the Global Note
representing such Note.
E. DTC will credit such Note to the
participant account of the Trustee
maintained by DTC.
F. The Trustee will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC (i) to debit such
Note to the Trustee's participant
account and credit such Note to the
participant account of the Offering
Agent maintained by DTC and (ii) to
debit the settlement account of the
Offering Agent and credit the
settlement
<PAGE> 58
account of the Trustee maintained by
DTC, in an amount equal to the price of
such Note less such Offering Agent's
discount or underwriting commission, as
applicable. Any entry of such a deliver
order shall be deemed to constitute a
representation and warranty by the
Trustee to DTC that (i) the Global Note
representing such Note has been issued
and authenticated and (ii) the Trustee
is holding such Global Note pursuant to
the Certificate Agreement.
G. In the case of Notes in book-entry form
sold through the Offering Agent, as
agent, the Offering Agent will enter an
SDFS deliver order through DTC's
Participant Terminal System instructing
DTC (i) to debit such Note to the
Offering Agent's participant account
and credit such Note to the participant
account of the Participants maintained
by DTC and (ii) to debit the settlement
accounts of such Participants and
credit the settlement account of the
Offering Agent maintained by DTC in an
amount equal to the initial public
offering price of such Note.
H. Transfers of funds in accordance with
SDFS deliver orders described in
Settlement Procedures F and G will be
settled in accordance with SDFS
operating procedures in effect on the
Settlement Date.
I. Upon receipt, the Trustee will pay the
Operating Partnership, by wire transfer
of immediately available funds to an
account specified by the Operating
Partnership to the Trustee from time to
time, the amount transferred to the
Trustee in accordance with Settlement
Procedure F.
J. The Trustee will send a copy of the
Global Note by first class mail to the
Operating Partnership and, at the
request of the Operating Partnership, a
statement setting forth the principal
amount of Notes Outstanding as of the
related Settlement Date after giving
effect to such transaction and all
other offers to purchase Notes of which
the Operating Partnership has advised
the Trustee but which have not yet been
settled.
K. If such Note was sold through the
Offering Agent, as agent, the Offering
Agent will confirm the purchase of such
Note to the investor or other purchaser
either by transmitting to the
Participant with respect to such Note a
confirmation order through DTC's
Participant Terminal System or by
mailing a written confirmation to such
investor or other purchaser.
Settlement Procedures
Timetable: For offers to purchase Notes accepted
by the Operating Partnership,
Settlement Procedures A through K set
forth above shall be completed as soon
as possible following the trade but not
later than the respective times (New
York City time) set forth below:
<PAGE> 59
SETTLEMENT
PROCEDURE TIME
A 11:00 a.m. on the trade date
or within one hour following
the trade
B 12:00 noon on the trade date
or within one hour following
the trade
C No later than the close of
business on the trade date
D 9:00 a.m. on Settlement Date
E 10:00 a.m. on Settlement Date
F-G No later than 2:00 p.m. on
Settlement Date
H 4:00 p.m. on Settlement Date
I-K 5:00 p.m. on Settlement
Date
Settlement Procedure H is subject to
extension in accordance with any
extension of Fedwire closing deadlines
and in the other events specified in
the SDFS operating procedures in effect
on the Settlement Date.
If settlement of a Note issued in
book-entry form is rescheduled or
canceled, the Trustee will deliver to
DTC, through DTC's Participant Terminal
System, a cancellation message to such
effect by no later than 2:00 p.m., New
York City time, on the Business Day
immediately preceding the scheduled
Settlement Date.
Failure to Settle: If the Trustee fails to enter an SDFS
deliver order with respect to a Note
issued in book-entry form pursuant to
Settlement Procedure F, the Trustee may
deliver to DTC, through DTC's
Participant Terminal System, as soon as
practicable a withdrawal message
instructing DTC to debit such Note to
the participant account of the Trustee
maintained at DTC. DTC will process the
withdrawal message, provided that such
participant account contains a
principal amount of the Global Note
representing such Note that is at least
equal to the principal amount to be
debited. If withdrawal messages are
processed with respect to all the Notes
represented by a Global Note, the
Trustee will mark such Global Note
"canceled," make appropriate entries in
its records and send certification of
destruction of such canceled Global
Note to the Operating Partnership. The
CUSIP number assigned to such Global
Note shall, in accordance with CUSIP
Service Bureau procedures, be canceled
and not immediately reassigned. If
withdrawal messages are processed with
respect to a portion of the Notes
represented by a Global Note, the
Trustee will exchange such Global Note
for two Global Notes, one of which
shall represent the Global Notes for
which withdrawal messages are processed
and shall be canceled immediately after
issuance and the other of which shall
represent the other Notes previously
represented by the surrendered Global
Note and shall bear the CUSIP number of
the surrendered Global Note.
In the case of any Note in book-entry
form sold through the Offering Agent,
as agent, if the purchase price for any
such Note is not timely paid to the
Participants with respect thereto by
the beneficial investor or other
purchaser thereof (or a person,
including an indirect participant in
DTC,
<PAGE> 60
acting on behalf of such investor or
other purchaser), such Participants
and, in turn, the related Offering
Agent may enter SDFS deliver orders
through DTC's Participant Terminal
System reversing the orders entered
pursuant to Settlement Procedures F and
G, respectively. Thereafter, the
Trustee will deliver the withdrawal
message and take the related actions
described in the preceding paragraph.
If such failure shall have occurred for
any reason other than default by the
Offering Agent to perform its
obligations hereunder or under the
Distribution Agreement, the Operating
Partnership will reimburse such
Offering Agent on an equitable basis
for its loss of the use of funds during
the period when the funds were credited
to the account of the Operating
Partnership.
Notwithstanding the foregoing, upon any
failure to settle with respect to a
Note in book-entry form, DTC may take
any actions in accordance with its SDFS
operating procedures then in effect. In
the event of a failure to settle with
respect to a Note that was to have been
represented by a Global Note also
representing other Notes, the Trustee
will provide, in accordance with
Settlement Procedure D, for the
authentication and issuance of a Global
Note representing such remaining Notes
and will make appropriate entries in
its records.
<PAGE> 61
PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations: Unless otherwise specified in the
applicable Pricing Supplement, the
Certificated Notes will be issued in
denominations of $1,000 and integral
multiples thereof.
Payments of Principal,
Premium, if any,
and Interest: Upon presentment and delivery of the
Certificated Note, the Trustee upon
receipt of immediately available funds
from the Operating Partnership will pay
the principal of, and premium, if any,
and interest on, each Certificated Note
on the Maturity Date in immediately
available funds. All interest payments
on a Certificated Note, other than
interest due on the Maturity Date, will
be made by check mailed to the address
of the person entitled thereto as such
address shall appear in the Security
Register; provided, however, that
Holders of $10,000,000 (or, if the
applicable Specified Currency is other
than United States dollars, the
equivalent thereof in such Specified
Currency) or more in aggregate
principal amount of Certificated Notes
(whether having identical or different
terms and provisions) shall be entitled
to receive such interest payments by
wire transfer of immediately available
funds if appropriate wire transfer
instructions have been received in
writing by the Trustee not less than 15
calendar days prior to the applicable
Interest Payment Date.
The Trustee will provide monthly to the
Operating Partnership a list of the
principal, premium, if any, and
interest to be paid on Certificated
Notes maturing in the next succeeding
month. The Trustee will be responsible
for withholding taxes on interest paid
as required by applicable law.
Certificated Notes presented to the
Trustee on the Maturity Date for
payment will be canceled by the
Trustee. All canceled Certificated
Notes held by the Trustee shall be
destroyed, and the Trustee shall
furnish to the Operating Partnership a
certificate with respect to such
destruction.
Settlement
Procedures: Settlement Procedures with regard to
each Certificated Note purchased by an
Agent, as principal, or through an
Agent, as agent, shall be as
follows:
A. The Offering Agent will advise the
Operating Partnership by telephone
of the following Settlement
information with regard to each
Certificated Note:
1. Exact name in which the
Certificated Note(s) is to be
registered (the "Registered
Owner").
<PAGE> 62
2. Exact address or addresses of
the Registered Owner for
delivery, notices and
payments of principal,
premium, if any, and
interest.
3. Taxpayer identification
number of the Registered
Owner.
4. Principal Amount, Authorized
Denomination and Specified
Currency.
5. Exchange Rate Agent, if any.
6. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment
Dates.
(iii) Whether such Note is
being issued with
Original Issue
Discount and, if so,
the terms thereof.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis
or Bases.
(iii) Initial Interest
Rate.
(iv) Spread and/or Spread
Multiplier, if any.
(v) Initial Interest
Reset Date and
Interest Reset
Dates.
(vi) Interest Payment
Dates.
(vii) Index Maturity,
if any.
(viii)Maximum and/or
Minimum Interest
Rates, if any.
(ix) Day Count
Convention.
(x) Calculation Agent.
7. Price to public of such Note
or whether such Note is being
offered at varying prices
relating to prevailing market
prices at time of resale as
determined by the Offering
Agent.
8. Trade Date.
9. Settlement Date (Original
Issue Date).
<PAGE> 63
10. Stated Maturity Date.
11. Whether the Operating
Partnership has the option to
extend the Stated Maturity
Date of the Note, and, if so
the final Maturity Date.
12. Redemption provisions, if
any.
13. Repayment provisions, if any.
14. Net proceeds to the Operating
Partnership.
15. The Offering Agent's discount
or commission.
16. Whether such Note is being
sold to the Offering Agent as
principal or to a n investor
or other purchaser through
the Offering Agent acting as
agent for the Operating
Partnership.
17. Such other information
specified with respect to
such Note (whether by
Addendum or otherwise).
B. After receiving such settlement
information from the Offering Agent,
the Operating Partnership will advise
the Trustee of the above settlement
information by facsimile transmission
confirmed by telephone. The Operating
Partnership will cause the Trustee to
issue, authenticate and deliver the
Certificated Note.
C. The Trustee will complete the
Certificated Note in the form approved
by the Operating Partnership and the
Offering Agent, and will make three
copies thereof (herein called "Stub 1",
"Stub 2" and "Stub 3"):
1. Certificated Note with the
Offering Agent's
confirmation, if traded on a
principal basis, or the
Offering Agent's customer
confirmation, if traded on an
agency basis.
2. Stub 1 for Trustee.
3. Stub 2 for Offering Agent.
4. Stub 3 for the Operating
Partnership.
D. With respect to each trade, the Trustee
will deliver the Certificated Note and
Stub 2 thereof to the Offering Agent at
the following applicable address: if to
Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Merrill Lynch Money
Markets Clearance, 55 Water Street,
Concourse Level, N.S.C.C. Window, New
York, New York 10041, Attention: Al
Mitchell, (212) 558-2405, telecopier:
(212) 558-2457;
<PAGE> 64
if to J.P. Morgan Securities Inc.,
NSCC-NY Window, 55 Water Street -
Concourse Level, New York, New York
10041 Attn: Bill Davis. The Trustee
will keep Stub 1. The Offering Agent
will acknowledge receipt of the
Certificated Note through a broker's
receipt and will keep Stub 2. Delivery
of the Certificated Note will be made
only against such acknowledgment of
receipt. Upon determination that the
Certificated Note has been authorized,
delivered and completed as
aforementioned, the Offering Agent will
wire the net proceeds of the
Certificated Note after deduction of
its applicable commission to the
Operating Partnership pursuant to
standard wire instructions given by the
Operating Partnership.
E. In the case of a Certificated Note sold
through the Offering Agent, as agent,
the Offering Agent will deliver such
Certificated Note (with the
confirmation) to the purchaser against
payment in immediately available funds.
F. The Trustee will send Stub 3 to the
Operating Partnership.
Settlement
Procedures
Timetable: For offers to purchase Certificated
Notes accepted by the Operating
Partnership, Settlement Procedures A
through F set forth above shall be
completed as soon as possible following
the trade but not later than the
respective times (New York City time)
set forth below:
SETTLEMENT
PROCEDURE TIME
A 11:00 a.m. on the trade date
or within one hour following
the trade
B 12:00 noon on the trade date
or within one hour following
the trade
C-D 2:15 p.m. on Settlement Date
E 3:00 p.m. on Settlement Date
F 5:00 p.m. on Settlement Date
Failure to Settle: In the case of Certificated Notes sold
through the Offering Agent, as agent,
if an investor or other purchaser of a
Certificated Note from the Operating
Partnership shall either fail to accept
delivery of or fail to make payment for
such Certificated Note on the date
fixed for settlement, the Offering
Agent will forthwith notify the Trustee
and the Operating Partnership by
telephone, confirmed in writing, and
return such Certificated Note to the
Trustee.
The Trustee, upon receipt of such
Certificated Note from the Offering
Agent, will immediately advise the
Operating Partnership and the Operating
Partnership will promptly arrange to
credit the account of the Offering
Agent in an amount of immediately
available funds equal to the
<PAGE> 65
amount previously paid to the Operating
Partnership by such Offering Agent in
settlement for such Certificated Note.
Such credits will be made on the
Settlement Date if possible, and in any
event not later than the Business Day
following the Settlement Date; provided
that the Operating Partnership has
received notice on the same day. If
such failure shall have occurred for
any reason other than default by the
Offering Agent to perform its
obligations hereunder or under the
Distribution Agreement, the Operating
Partnership will reimburse such
Offering Agent on an equitable basis
for its loss of the use of funds during
the period when the funds were credited
to the account of the Operating
Partnership. Immediately upon receipt
of the Certificated Note in respect of
which the failure occurred, the Trustee
will cancel and destroy such
Certificated Note, make appropriate
entries in its records to reflect the
fact that such Certificated Note was
never issued, and accordingly notify in
writing the Operating Partnership.
<PAGE> 1
EXHIBIT 5(a)
[KING & SPALDING LETTERHEAD]
Post Apartment Homes, L.P.
3350 Cumberland Circle
Suite 2200
Atlanta, Georgia 30339
Re: Post Apartment Homes, L.P. -- $344,000,000 Aggregate Principal
Amount of Medium-Term Notes Due Nine Months or More from Date
of Issue
Ladies and Gentlemen:
We have acted as counsel for 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
$344,000,000 aggregate principal amount of Medium-Term Notes Due Nine Months or
More from Date of Issue (the "Notes") pursuant to a Prospectus Supplement dated
October 20, 1997 (the "Notes 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 the trustee (the "Trustee") will be duly authorized by all
requisite action by the Trustee, and that the Indenture was duly executed and
delivered by, and is a valid and binding agreement of, the Trustee, enforceable
against the Trustee in accordance with its terms.
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
<PAGE> 2
Post Apartment Homes, L.P.
October 20, 1997
Page 2
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 Operating Partnership is a validly existing limited
partnership under the laws of the State of Georgia;
(ii) 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 be (x) valid and binding obligations of the Operating Partnership,
enforceable against the Operating Partnership in accordance with their terms
and (y) entitled to the benefits of the Indenture.
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 Operating Partnership in connection with the matters expressed herein.
This opinion may not be furnished to or relied upon by any person or entity for
any purpose without our prior written consent.
We hereby consent to the filing of this opinion as an Exhibit
to the Current Report on Form 8-K and to the reference to us under the caption
"Legal Matters" in the Prospectus Supplement dated October 20, 1997.
Very truly yours,
KING & SPALDING
<PAGE> 1
October 20, 1997
Post Apartment Homes, L.P.
3350 Cumberland Circle
Suite 2200
Atlanta, Georgia 30339
Re: Post Apartment Homes, L.P. -- $344,000,000 Aggregate Principal
Amount of Medium-Term Notes Due Nine Months or More from
Date of Issue
Ladies and Gentlemen:
We have acted as counsel to 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 $344,000,000
aggregate principal amount of Medium-Term Notes due Nine Months or More from
Date of Issue (the "Notes") pursuant to a Prospectus Supplement dated October
20, 1997 (the "Notes Prospectus Supplement"). You have requested our opinion as
to the accuracy of the information contained in the Notes Prospectus Supplement
under the heading "Certain United States Federal Income Tax Considerations."
Unless otherwise indicated, all terms used herein with initial capital
letters shall have the same meaning as in the Notes Prospectus Supplement.
In rendering the opinion expressed herein, we have examined such
documents as we have deemed appropriate. In our examination of documents, we
have assumed, with your consent, that all documents submitted to us are
authentic originals, or if submitted as photocopies or telecopies, that they
faithfully reproduce the originals thereof, that all such documents have been
or will be duly executed to the extent required, that all representations and
statements set forth in such documents are true and correct, and that all
obligations imposed by any such documents on the parties thereto have been or
will be performed or satisfied in accordance with their terms. We have also
obtained such additional information and representations as we have deemed
relevant and necessary through consultation with officers of the Company.
Based upon and subject to the foregoing, we are of the opinion that the
information in the Notes Prospectus Supplement under the heading "Certain
United States Federal Income Tax Considerations" constitutes, in all material
respects, a fair and accurate summary of the material
<PAGE> 2
October 20, 1997
Page 2
United States federal income tax consequences of the purchase, ownership and
disposition of the Notes under current law.
The opinion expressed herein is based upon the Internal Revenue Code of
1986, as amended, the U.S. Treasury Regulations promulgated thereunder, current
administrative positions of the U.S. Internal Revenue Service, and existing
judicial decisions, any of which could be changed at any time, possibly on a
retroactive basis. Any such changes could adversely affect the opinion
rendered herein and the tax consequences to the Operating Partnership and the
investors in the Notes. In addition, as noted above, our opinion is based
solely on the documents that we have examined, the additional information that
we have obtained, and the representations that have been made to us, and cannot
be relied upon if any of the facts contained in such documents or in such
additional information is, or later becomes, inaccurate or if any of the
representations made to us is, or later becomes, inaccurate. We are not,
however, aware of any facts or circumstances contrary to or inconsistent with
the information, assumptions, and representations upon which we have relied for
purposes of this opinion.
Finally, our opinion is limited to the tax matters specifically covered
thereby, and we have not been asked to address, nor have we addressed, any
other tax consequences of an investment in the Notes.
Very truly yours,
King & Spalding
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to the
incorporation by reference in (i) the Registration Statement on Form S-3 (No.
333-3555) of Post Properties, Inc. and Post Apartment Homes, L.P.; and (ii) the
Registration Statement on Form S-3 (No. 333-36595) of Post Properties, Inc. and
Post Apartment Homes, L.P. of our report dated January 28, 1997, except for
Note 15, as to which the date is March 7, 1997, with respect to the
consolidated financial statements of Columbus Realty Trust as of December 31,
1996 and 1995 and for the three years ended December 31, 1996, included in Post
Apartment Homes, L.P.'s Current Report on Form 8-K dated September 17, 1997
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Dallas, Texas
October 15, 1997
