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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) March 31, 1998
POST APARTMENT HOMES, L.P.
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(Exact name of registrant as specified in its charter)
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<S> <C> <C>
Georgia 0-28226 58-2053632
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(State or other jurisdiction of (Commission File Number) (IRS Employer Identification No.)
incorporation)
</TABLE>
3350 Cumberland Circle, Atlanta, Georgia 30339
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(Address of principal executive offices) (Zip Code)
(770) 850-4400
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(Registrant's telephone number, including area code)
This document consists of 53 pages
The Exhibit Index is at page 4.
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Item 5. Other Events
Post Apartment Homes, L.P. announced today the issuance and sale (the
"Offering") of $50,000,000 aggregate principal amount of Remarketed Reset Notes
due April 7, 2009 (the "Notes"). The Registrant is filing this Current Report on
Form 8-K so as to file with the Commission certain items that are to be
incorporated by reference into its Registration Statement on Form S-3
(Registration No. 333-36595) with respect to the Offering.
Item 7. Financial Statements and Exhibits
(c) Exhibits.
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Exhibit No. Description
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4(a) -- Form of Note for the Remarketed Reset Notes due April 7, 2009
4(b) -- Form of Remarketing Agreement for the Remarketed Reset Notes due April
7, 2009
4(c) -- Form of Remarketing Underwriting Agreement for the Remarketed Reset
Notes due April 7, 2009
8 -- Opinion of King & Spalding relating to certain tax matters
23 -- Consent of King & Spalding (included in Exhibit 8)
</TABLE>
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
POST APARTMENT HOMES, L.P.
(Registrant)
BY: POST GP HOLDINGS, INC.
Date: April 8, 1998 By:/s/ John T. Glover
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John T. Glover
President
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EXHIBIT INDEX
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Exhibit No. Description Page
- ---------- -----------
4(a) -- Form of Note for the Remarketed Reset Notes due April 7, 2009
4(b) -- Form of Remarketing Agreement for the Remarketed Reset Notes
due April 7, 2009
4(c) -- Form of Remarketing Underwriting Agreement for the Remarketed
Reset Notes due April 7, 2009
8 -- Opinion of King & Spalding relating to certain tax matters
23 -- Consent of King & Spalding (included in Exhibit 8)
</TABLE>
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EXHIBIT 4(a)
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
REGISTERED REGISTERED PRINCIPAL
No. AMOUNT: $50,000,000
CUSIP No.: 73741PAJ4
POST APARTMENT HOMES, L.P.
MEDIUM-TERM NOTE
Remarketed Reset Notes due April 7, 2009
ORIGINAL ISSUE DATE: April 8, 1998 STATED MATURITY DATE: April 7, 2009
POST APARTMENT HOMES, L.P., a Georgia limited partnership (the
"Issuer"), which term includes any successor under the Indenture hereinafter
referred to, for value received, hereby promises to pay to Cede and Co., a
nominee of The Depository Trust Company its registered assigns, the principal
amount of Fifty Million Dollars ($50,000,000), on April 7, 2009, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest in
arrears on each January 7, April 7, July 7 and October 7, as the case may be, or
any other date as shall be established by the Issuer as an interest payment date
(each, an "Interest Payment Date"), commencing on July 7, 1998, and at maturity,
on the principal amount of this Global Note, in like coin or currency, at the
times and at the rate per annum from time to time in effect as set forth below,
from the most recent date to which interest has been paid or, if no interest has
been paid, from April 8, 1998. The interest so payable on each Interest Payment
Date will, subject to certain exceptions provided in the Indenture referred to
below, be paid to the person in whose name this Global Note is registered on the
15th calendar day, whether or not a Business Day, next preceding the applicable
Interest Payment Date.
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This Global Note is issued in respect of a duly authorized
issue of Securities of the Issuer, designated as the Remarketed Reset Notes due
April 7, 2009 of the Issuer (the "Notes"), which Notes are limited in aggregate
principal amount to $50,000,000, of the series designated "Medium-Term Notes Due
Nine Months or More From Date of Issue" of the Issuer, subject to an Indenture
dated as of September 25, 1996 (the "Indenture"), between the Issuer and
SunTrust Bank, Atlanta, as trustee (herein called the "Trustee"). The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by the Trust Indenture Act of 1939, as amended (the "Act"). The Notes
are subject to all such terms, and beneficial owners of interests in this Global
Note are referred to the Indenture and the Act for a statement of such terms.
All terms used in this Global Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture. The Notes of this series are
general and unsecured obligations of the Issuer.
Except as provided below, owners of beneficial interests in
the Notes evidenced by this Global Note will not be entitled to receive
definitive Notes evidencing such ownership. Beneficial interests in the Notes
will be held through a depositary selected by the Issuer, which initially is The
Depository Trust Company ("DTC"). This Global Note will be deposited with and
held by DTC and is registered in the name of DTC's nominee. So long as DTC's
nominee is the registered owner of this Global Note, such nominee for all
purposes will be considered the sole owner of the Notes under the Indenture. If
DTC is at any time unwilling, unable or ineligible to continue as depositary and
a successor depositary is not appointed by the Issuer within 90 calendar days of
its receipt of notice from DTC to such effect, the Issuer will issue individual
Notes in definitive form in exchange for this Global Note. In addition, the
Issuer may at any time and in its sole discretion determine not to have the
Notes represented by a Global Note. In either instance, an owner of a beneficial
interest in this Global Note will be entitled to have Notes equal in principal
amount to such beneficial interest registered in its name and will be entitled
to physical delivery of such Notes in definitive form. Notes so issued in
definitive form will be issued in denominations of $1,000 and any integral
multiple thereof and will be issued in registered form only, without coupons.
During the period from and including April 8, 1998 to but
excluding April 7, 1999 (the "Initial Spread Period"), interest on the Notes
will be payable quarterly in arrears, on July 7, 1998, October 7, 1998, January
7, 1999 and April 7, 1999 (or, if not a Business Day (as defined herein), on the
next succeeding Business Day (except as described below)), to the persons in
whose names the Notes are registered at the close of business on the applicable
record date (in the case of Notes in either the Floating Rate Mode or the Fixed
Rate Mode, the 15th calendar day, whether or not a Business Day, next preceding
the applicable Interest Payment Date) next preceding such Interest Payment Date.
During the Initial Spread Period and any Subsequent Spread Period for which the
Notes are in the Floating Rate Mode, the interest rate on the Notes will be
reset quarterly and the Notes will bear interest at a per annum rate (computed
on the basis of the actual number of days elapsed over a 360-day year) equal to
LIBOR (as defined below) for the applicable Quarterly Period (as defined
herein), plus the applicable Spread (as defined below). Interest on the Notes
will accrue from and including each Interest Payment Date (or, in the case of
the Initial Quarterly Period (as defined herein), April 8, 1998) to but
excluding the next succeeding Interest Payment Date or maturity date, as the
case may be. The Initial
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Quarterly Period will be the period from and including April 8, 1998 to but
excluding the first Interest Payment Date (July 7, 1998) (the "Initial Quarterly
Period"). Thereafter, each Quarterly Period during the Initial Spread Period or
any Subsequent Spread Period (as defined below) (each, a "Quarterly Period")
will be from and including the most recent Interest Payment Date to which
interest has been paid to but excluding the next Interest Payment Date; the
first day of a Quarterly Period is referred to herein as an "Interest Reset
Date."
The Spread applicable during the Initial Spread Period will be
.40% (the "Initial Spread"), and the interest rate mode used for the Initial
Spread Period will be the Floating Rate Mode. Thus, the interest rate per annum
during the Initial Quarterly Period will be equal to LIBOR, determined as of
April 6, 1998, plus .40%. The interest rate per annum for each succeeding
Quarterly Period during the Initial Spread Period will equal LIBOR for such
Quarterly Period plus the Initial Spread. Thereafter, the Spread will be
determined in the manner described herein for each subsequent Spread period from
and including each Commencement Date to but excluding each next succeeding
Commencement Date (a "Subsequent Spread Period"), which will be one or more
periods of at least six months and not more than ten years (or any integral
multiple of six months therein), designated by the Issuer, commencing on an
October 7 or April 7 (or as otherwise specified by the Issuer and the
Remarketing Underwriter on the applicable Duration/Mode Determination Date in
connection with the establishment of each Subsequent Spread Period), as
applicable (a "Commencement Date"), through and including April 7, 2009 (no
Subsequent Spread Period may end after April 7, 2009). The first Commencement
Date will be April 7, 1999.
If any Interest Payment Date (other than at maturity),
redemption date, Interest Reset Date, Commencement Date or Tender Date in the
Floating Rate Mode would otherwise be a day that is not a Business Day, such
Interest Payment Date, redemption date, Interest Reset Date, Commencement Date
or Tender Date will be postponed to the next succeeding day that is a Business
Day, except that if such Business Day is in the next succeeding calendar month,
such Interest Payment Date, redemption date, Interest Reset Date, Commencement
Date or Tender Date shall be the next preceding Business Day.
If the maturity date for the Notes falls on a day that is not
a Business Day, the related payment of principal and interest will be made on
the next succeeding Business Day as if it were made on the date such payment was
due, and no interest will accrue on the amounts so payable for the period from
and after such date.
LIBOR applicable for a Quarterly Period will be determined by
the Rate Agent (as defined herein) as of the second London Business Day (as
defined herein) preceding each Interest Reset Date (the "LIBOR Determination
Date") in accordance with the following provisions:
(i) LIBOR will be determined on the basis of the offered rates
for three-month deposits in U.S. dollars, commencing on the second London
Business Day immediately following such LIBOR Determination Date, which appears
on Telerate Page 3750 (as defined herein) as of approximately 11:00 a.m., London
time, on such LIBOR Determination Date.
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"Telerate Page 3750" means the display designated on page "3750" on Dow Jones
Markets Limited (or such other page as may replace the 3750 page on that
service, any successor service or such other service or services as may be
nominated by the British Bankers' Association for the purpose of displaying
London interbank offered rates for U.S. dollar deposits). If no rate appears on
Telerate Page 3750, LIBOR for such LIBOR Determination Date will be determined
in accordance with the provisions of paragraph (ii) below.
(ii) With respect to a LIBOR Determination Date on which no
rate appears on Telerate Page 3750 as of approximately 11:00 a.m., London time,
on such LIBOR Determination Date, the Rate Agent shall request the principal
London offices of each of four major reference banks in the London interbank
market selected by the Rate Agent to provide the Rate Agent with a quotation of
the rate at which three-month deposits in U.S. dollars, commencing on the second
London Business Day immediately following such LIBOR Determination Date, are
offered by it to prime banks in the London interbank market as of approximately
11:00 a.m., London time, on such LIBOR Determination Date in a principal amount
equal to an amount of not less than U.S. $1,000,000 that is representative for a
single transaction in such market at such time. If at least two such quotations
are provided, LIBOR for such LIBOR Determination Date will be the arithmetic
mean of such quotations as calculated by the Rate Agent. If fewer than two
quotations are provided, LIBOR for such LIBOR Determination Date will be the
arithmetic mean of the rates quoted as of approximately 11:00 a.m., New York
City time, on such LIBOR Determination Date by three major banks in The City of
New York selected by the Rate Agent (after consultation with the Issuer) for
loans in U.S. dollars to leading European banks, having a three-month maturity
commencing on the second London Business Day immediately following such LIBOR
Determination Date and in a principal amount equal to an amount of not less than
U.S. $1,000,000 that is representative for a single transaction in such market
at such time; provided, however, that if the banks selected as aforesaid by the
Rate Agent are not quoting as mentioned in this sentence, LIBOR for such LIBOR
Determination Date will be LIBOR determined with respect to the immediately
preceding LIBOR Determination Date, or in the case of the first LIBOR
Determination Date, LIBOR for the Initial Quarterly Period.
Unless notice of redemption of the Notes as a whole has been
given, after the Initial Spread Period, the duration, redemption dates,
redemption type, redemption prices (if applicable), Commencement Date, Interest
Payment Dates (as defined herein), interest rate mode and any other relevant
terms for each Subsequent Spread Period (as defined herein) will be agreed to by
the Issuer and the Remarketing Underwriter (as defined herein) on each
applicable Duration/Mode Determination Date (as defined herein) and the Spread
will be agreed to by the Issuer and the Remarketing Underwriter by 1:00 p.m.,
New York City time, on the corresponding Spread Determination Date (as defined
herein). Interest on the Notes during each subsequent Spread period (a
"Subsequent Spread Period") shall be payable, as applicable, either (i) at a
floating interest rate (such Notes being in the "Floating Rate Mode," and such
interest rate being a "Floating Rate") or (ii) at a fixed interest rate (such
Notes being in the "Fixed Rate Mode" and such interest rate being a "Fixed
Rate"), in each case as determined by the Remarketing Underwriter and the Issuer
in accordance with a Remarketing Agreement between the Remarketing Underwriter
and the Issuer (the "Remarketing Agreement").
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After the Initial Spread Period, the Spread applicable to each
Subsequent Spread Period will be determined on each subsequent Spread
Determination Date that precedes the beginning of the corresponding Subsequent
Spread Period, pursuant to agreement between the Issuer and the Remarketing
Underwriter (except as otherwise provided below), and the interest rate mode
used for each Subsequent Spread Period may be a Floating Rate Mode or a Fixed
Rate Mode, at the discretion of the Issuer and the Remarketing Underwriter. If
the Issuer and the Remarketing Underwriter are unable to agree on the Spread,
(1) the Subsequent Spread Period will be one year, (2) the Notes will be reset
to the Floating Rate Mode, (3) the Spread for such Subsequent Spread Period will
be the Alternate Spread (as defined herein) and (4) the Notes will be redeemable
at the option of the Issuer, in whole or in part, upon at least five Business
Days' Notice given by no later than the fifth Business Day after the relevant
Spread Determination Date, at a redemption price equal to 100% of the principal
amount thereof, together with accrued interest to the redemption date, except
that the Notes may not be redeemed prior to the Tender Date (as defined herein)
or later than the last day of such one-year Subsequent Spread Period. The
Alternate Spread will be the percentage equal to LIBOR (as described herein) for
the Quarterly Period beginning on the first date of such Subsequent Spread
Period (the "Commencement Date").
If the Notes are to be reset to the Fixed Rate Mode, as agreed
to by the Issuer and the Remarketing Underwriter on a Duration/Mode
Determination Date, then the applicable Fixed Rate for the corresponding
Subsequent Spread Period will be determined by 1:00 p.m., New York City time, on
the third Business Day prior to the Commencement Date for such Subsequent Spread
Period (the "Fixed Rate Determination Date"), in accordance with the following
provisions: the Fixed Rate will be a per annum rate and will be determined by
adding (i) the applicable Spread (as agreed to by the Issuer and the Remarketing
Underwriter on the preceding Spread Determination Date) to (ii) the yield to
maturity determined by 1:00 p.m., New York City time, on the Fixed Rate
Determination Date (expressed as a bond equivalent, on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) of the applicable
United States Treasury security, selected by the Rate Agent after consultation
with the Remarketing Underwriter, as having a maturity comparable to the
duration selected for the following Subsequent Spread Period, which would be
used in accordance with customary financial practice in pricing new issues of
corporate debt securities of comparable maturity to the duration selected for
the following Subsequent Spread Period.
Interest in the Fixed Rate Mode will be computed on the basis
of a 360-day year of twelve 30-day months. Such interest will be payable
semiannually in arrears on the Interest Payment Dates (October 7 and April 7,
unless otherwise specified by the Issuer and the Remarketing Underwriter on the
applicable Duration/Mode Determination Date) at the applicable Fixed Rate, as
determined by the Issuer and the Remarketing Underwriter on the Fixed Rate
Determination Date, beginning on the Commencement Date and for the duration of
the relevant Subsequent Spread Period. Interest on the Notes will accrue from
and including each Interest Payment Date to but excluding the next succeeding
Interest Payment Date or maturity date, as the case may be.
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If any Interest Payment Date or any redemption date in the
Fixed Rate Mode falls on a day that is not a Business Day (in either case, other
than any Interest Payment Date or redemption date that falls on a Commencement
Date, in which case such date will be postponed to the next day that is a
Business Day), the related payment of principal and interest will be made on the
next succeeding Business Day as if it were made on the date such payment was
due, and no interest will accrue on the amounts so payable for the period from
and after such dates.
The Spread that will be applicable during each Subsequent
Spread Period will be the percentage (a) recommended by the Remarketing
Underwriter so as to result in a rate that, in the opinion of the Remarketing
Underwriter, will enable tendered Notes to be remarketed by the Remarketing
Underwriter at 100% of the principal amount thereof, as described below, and (b)
agreed to by the Issuer.
Unless notice of redemption of the Notes as a whole has been
given, the duration, redemption dates, redemption types (i.e., par, premium or
make-whole), redemption prices (if applicable), Commencement Date, Interest
Payment Dates and interest rate mode (i.e., Fixed Rate Mode or Floating Rate
Mode) and any other relevant terms for each Subsequent Spread Period will be
established by 3:00 p.m., New York City time, on the tenth Business Day prior to
the Commencement Date of each Subsequent Spread Period (the "Duration/Mode
Determination Date"). In addition, the Spread for each Subsequent Spread Period
will be established by 1:00 p.m., New York City time, on the fifth Business Day
prior to the Commencement Date of such Subsequent Spread Period (the "Spread
Determination Date"). The Issuer will request, not later than five nor more than
ten Business Days prior to any Spread Determination Date, that DTC notify its
Participants of such Spread Determination Date and of the procedures that must
be followed if any beneficial owner of a Note wishes to tender such Note as
described below. In the event that DTC or its nominee is no longer the holder of
record of the Notes, the Issuer will notify the Noteholders of such information
within such period of time. This will be the only notice given by the Issuer or
the Remarketing Underwriter with respect to such Spread Determination Date and
procedures for tendering Notes. The term "Business Day" means any day other than
a Saturday or Sunday or a day on which banking institutions in The City of New
York are required or authorized to close and, in the case of Notes in the
Floating Rate Mode, that is also a London Business Day. The term "London
Business Day" means any day on which dealings in deposits in U.S. dollars are
transacted in the London interbank market.
All percentages resulting from any calculation of any interest
rate for the Notes will be rounded, if necessary, to the nearest one hundred
thousandth of a percentage point, with five one millionths of a percentage point
rounded upward and all dollar amounts will be rounded to the nearest cent, with
one half cent being rounded upward.
In the event the Issuer and the Remarketing Underwriter agree
on the Spread on the Spread Determination Date with respect to any subsequent
Spread Period, the Issuer and the Remarketing Underwriter will enter into a
Remarketing Underwriting Agreement (the "Remarketing Underwriting Agreement") on
such Spread Determination Date, under which the Remarketing Underwriter will
agree, subject to the terms and conditions set forth therein, to purchase from
tendering Noteholders on the date immediately following the end of a Subsequent
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Spread Period (the "Tender Date") all Notes with respect to which the
Remarketing Underwriter receives a Tender Notice as described below at 100% of
the principal amount thereof (the "Purchase Price"). In such event (except as
otherwise provided below), each beneficial owner of a Note may, at such owner's
option, upon giving notice as provided below (the "Tender Notice"), tender such
Note for purchase by the Remarketing Underwriter on the Tender Date at the
Purchase Price. The Purchase Price will be paid by the Remarketing Underwriter
in accordance with the standard procedures of DTC. Interest accrued on the Notes
with respect to the preceding Quarterly Period will be paid by the Issuer in the
manner described above.
The Tender Notice must be received by the Remarketing
Underwriter during the period commencing at 3:00 p.m., New York City time, on
the Spread Determination Date and ending at 12:00 noon, New York City time, on
the second Business Day following such Spread Determination Date for such
Subsequent Spread Period (the "Notice Date"). Except as otherwise provided
below, a Tender Notice shall be irrevocable. If a Tender Notice is not received
for any reason by the Remarketing Underwriter with respect to any Note by 5:00
p.m., New York City time, on the Notice Date, the beneficial owner of such Note
shall be deemed to have elected not to tender such Note for purchase by the
Remarketing Underwriter.
The obligation of the Remarketing Underwriter to purchase
Notes from tendering Noteholders will be subject to several conditions precedent
set forth in the Remarketing Underwriting Agreement. In addition, the
Remarketing Underwriting Agreement will provide for the termination thereof by
the Remarketing Underwriter upon the occurrence of certain events. In the event
that, with respect to any Subsequent Spread Period, the Remarketing Underwriter
does not purchase on the relevant Tender Date all of the Notes for which a
Tender Notice shall have been given, then (1) all such Tender Notices will be
null and void, (2) none of the Notes for which such Tender Notices shall have
been given will be purchased by the Remarketing Underwriter on such Tender Date,
(3) the Subsequent Spread Period will be one year, which Subsequent Spread
Period shall be deemed to have commenced upon the applicable Commencement Date,
(4) the Notes will be reset to the Floating Rate Mode, (5) the Spread for such
Subsequent Spread Period will be the Alternate Spread and (6) the Notes will be
redeemable at the option of the Issuer, in whole or in part, upon at least ten
Business Days' notice given by no later than the fifth Business Day following
the relevant Tender Date, on the date set forth in such notice, which shall be
no later than the last day of such one-year Subsequent Spread Period, at a
redemption price equal to 100% of the principal amount thereof, together with
accrued interest to the redemption date.
No beneficial owner of any Note shall have any rights or
claims against the Issuer or the Remarketing Underwriter as a result of the
Remarketing Underwriter not purchasing such Notes, except that such beneficial
owner shall have the right to receive the Alternate Spread on such Notes from
the Issuer. The Issuer will have no obligation under any circumstance to
repurchase any Notes, except in the case of Notes called for redemption as
described herein.
If the Remarketing Underwriter does not purchase all Notes
tendered for purchase on any Tender Date, it will promptly notify the Issuer and
the Trustee. As soon as practicable after receipt of such notice, the Issuer
will cause a notice to be given to Noteholders specifying
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(1) the one-year duration of the Subsequent Spread Period, (2) that the Notes
will reset to the Floating Rate Mode, (3) the Spread for such Subsequent Spread
Period (which shall be the Alternate Spread) and (4) LIBOR for the Initial
Quarterly Period of such Subsequent Spread Period.
The term "Remarketing Underwriter" means the nationally
recognized broker-dealer selected by the Issuer to act as Remarketing
Underwriter. The term "Rate Agent" means the nationally recognized broker-dealer
selected by the Issuer as its agent to determine (i) LIBOR and the interest rate
on the Notes for any Quarterly Period and/or (ii) the yield to maturity on the
applicable United States Treasury security that is used in connection with the
determination of the applicable Fixed Rate, and the ensuing applicable Fixed
Rate. Pursuant to a Remarketing Agreement, Merrill Lynch, Pierce, Fenner & Smith
Incorporated has agreed to act as Remarketing Underwriter and Rate Agent. The
Issuer, in its sole discretion, may change the Remarketing Underwriter and the
Rate Agent for any Subsequent Spread Period at any time on or prior to 3:00
p.m., New York City time, on the Duration/Mode Determination Date relating
thereto.
The Notes may not be redeemed by the Issuer prior to April 7,
1999. On that date, on each Commencement Date and on those Interest Payment
Dates specified as redemption dates by the Issuer on the Duration/Mode
Determination Date in connection with any Subsequent Spread Period, the Notes
may be redeemed, at the option of the Issuer, in whole or in part, upon notice
thereof given at any time during the 30 calendar day period ending on the tenth
Business Day prior to the redemption date, in accordance with the redemption
type selected on the Duration/Mode Determination Date. In the event of any
redemption of less than all of the outstanding Notes, the particular Notes to be
redeemed will be selected by such method as the Issuer shall deem fair and
appropriate. So long as the Global Note is held by DTC, the Issuer will give
notice to DTC, and DTC will determine the principal amount to be redeemed from
the account of each Participant.
The redemption type to be chosen by the Issuer and the
Remarketing Underwriter on the Duration/Mode Determination Date may be one of
the following as defined herein: (i) Par Redemption; (ii) Premium Redemption; or
(iii) Make-Whole Redemption. "Par Redemption" means redemption at a redemption
price equal to 100% of the principal amount thereof, plus accrued interest
thereon, if any, to the redemption date. "Premium Redemption" means redemption
at a redemption price or prices greater than 100% of the principal amount
thereof, plus accrued interest thereon, if any, to the redemption date, as
determined on the Duration/Mode Determination Date. "Make-Whole Redemption"
means redemption at a redemption price equal to the sum of (i) the principal
amount of the Notes being redeemed plus accrued interest thereon, if any, to the
redemption date and (ii) the Make-Whole Amount (as defined herein), if any, with
respect to such Notes.
"Make-Whole Amount" means, in connection with any optional
redemption or accelerated payment of any Note, the excess, if any, of (i) the
aggregate present value as of the date of such redemption or accelerated payment
of each dollar of principal being redeemed or paid and the amount of interest
(exclusive of interest accrued to the date of redemption or
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accelerated payment) that would have been payable in respect of such dollar if
such redemption or accelerated payment had not been made, determined by
discounting, on a semiannual basis, such principal and interest at the
Reinvestment Rate (as defined herein) (determined on the third Business Day
preceding the date such notice of redemption is given or declaration of
acceleration is made) from the respective dates on which such principal and
interest would have been payable if such redemption or accelerated payment had
not been made, over (ii) the aggregate principal amount of the Notes being
redeemed or paid.
"Reinvestment Rate" means 0.25% plus the yield on treasury
securities at constant maturity under the heading "Week Ending" published in the
Statistical Release (as defined herein) under the caption "Treasury Constant
Maturities" for the maturity (rounded to the nearest month) corresponding to the
remaining life to maturity, as of the payment date of the principal being
redeemed or paid. If no maturity exactly corresponds to such maturity, yields
for the two published maturities most closely corresponding to such maturity
shall be calculated pursuant to the immediately preceding sentence and the
Reinvestment Rate shall be interpolated or extrapolated from such yields on a
straight-line basis, rounding in each of such relevant periods to the nearest
month. For purposes of calculating the Reinvestment Rate, the most recent
Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated
"H. 15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded United
States government securities adjusted to constant maturities or, if such
statistical release is not published at the time of any determination under the
Indenture, then such other reasonably comparable index which shall be designated
by the Rate Agent, after consultation with the Issuer.
The Issuer, the Trustee, and any agent of the Issuer or the
Trustee may treat the registered holder hereof as the absolute owner of this
Global Note for all purposes.
When a successor corporation assumes all of the obligations of
its predecessor under the Notes and the Indenture, the predecessor corporation
will be released from those obligations.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof and, if so specified above, in the Addendum
hereto, which further provisions shall have the same force and effect as if set
forth on the face hereof.
Unless the Certificate of Authentication hereon has been
executed by the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
9
<PAGE> 10
IN WITNESS WHEREOF, Post Apartment Homes, L.P. has caused this
Note to be duly executed.
POST APARTMENT HOMES, L.P.,
as Issuer
By: POST GP HOLDINGS, INC.,
as General Partner
By:
---------------------------------------------
Name: John A. Williams
Title: Chief Executive Officer
Attest:
Sherry W. Cohen
Senior Vice President and Secretary
[SEAL]
10
<PAGE> 11
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: SUNTRUST BANK, ATLANTA,
-------------------- as Trustee
By:
--------------------------
Authorized Signatory
11
<PAGE> 12
[REVERSE OF NOTE]
POST APARTMENT HOMES, L.P.
MEDIUM-TERM NOTE
Remarketed Reset Notes due April 7, 2009
This Note is one of a duly authorized series of Securities
(the "Securities") of the Issuer issued and to be issued under an Indenture,
dated as of September 25, 1996, as amended, modified or supplemented from time
to time, (the "Indenture"), between the Issuer and SunTrust Bank, Atlanta, as
Trustee (the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Issuer, the Trustee and the holders of
the Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the series of Securities
designated as "Medium-Term Notes Due Nine Months or More From Date of Issue"
(the "Notes"), which series of Securities is limited to $344,000,000 aggregate
initial offering price (or the equivalent thereof, determined as of the
respective dates of issuance, in any other currency or currencies), subject to
the provisions of the Indenture. All terms used but not defined in this Note
specified on the face hereof or in an Addendum hereto shall have the meanings
assigned to such terms in the Indenture.
This Note is issuable only in registered form without coupons
in minimum denominations of U.S. $1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of the
following two paragraphs, will not be redeemable or repayable prior to the
Stated Maturity Date.
12
<PAGE> 13
If an Event of Default, as defined in the Indenture, shall
occur and be continuing, the principal of the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the
entire indebtedness of the Notes or (ii) certain covenants and Events of Default
with respect to the Notes, in each case upon compliance with certain conditions
set forth therein, which provisions apply to the Notes.
13
<PAGE> 14
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the holders of the Securities at any
time by the Issuer and the Trustee with the consent of the holders of not less
than a majority of the aggregate principal amount of all Securities at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority of the aggregate principal
amount of the outstanding Securities of any series, on behalf of the holders of
all such Securities, to waive compliance by the Issuer with certain provisions
of the Indenture. Furthermore, provisions in the Indenture permit the holders of
not less than a majority of the aggregate principal amount of the outstanding
Securities of any series, in certain instances, to waive, on behalf of all of
the holders of Securities of such series, certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the holder of
this Note shall be conclusive and binding upon such holder and upon all future
holders of this Note and other Notes issued upon the registration or transfer
hereof or in exchange heretofore or in lieu hereof, whether or not notation or
such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay principal, premium, if any, and
interest in respect of this Note at the times, places and rate or formula, and
in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein and herein set forth, the transfer of this Note is
registrable in the Security Register of the Issuer upon surrender of this Note
for registration of transfer at the office or agency of the Issuer in any place
where the principal hereof and any premium or interest hereon are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar duly executed by, the
holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain
limitations therein and herein set forth, this Note is exchangeable for a like
aggregate principal amount of Notes of different authorized denominations but
otherwise having the same terms and conditions, as requested by the holder
hereof surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the holder in whose name this Note is registered as the owner thereof for
all purposes, whether or not this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
14
<PAGE> 15
The Issuer will not, and will not permit a Subsidiary to,
incur any Debt, other than intercompany Debt (representing Debt to which the
only parties are the Company, the Issuer and any of their Subsidiaries, but only
so long as such Debt is held solely by any of the Company, the Issuer and any
Subsidiary) if, immediately after giving effect to the incurrence of such
additional Debt, the aggregate principal amount of all outstanding Debt of the
Issuer and its Subsidiaries on a consolidated basis determined in accordance
with generally accepted accounting principles is greater than 60% of the sum of
(i) Total Assets as of the end of the fiscal quarter covered in the Issuer's
Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be,
most recently filed with the Commission (or, if such filing is not permitted
under the Exchange Act, with the Trustee) prior to the incurrence of such
additional Debt and (ii) the increase in the Total Assets from the end of such
quarter including, without limitation, any increase in Total Assets resulting
from the incurrence of such additional Debt (such increase together with the
Issuer's Total Assets being referred to as the "Adjusted Total Assets").
In addition to the foregoing limitation on the incurrence of
Debt, the Issuer will not, and will not permit any Subsidiary to, incur any
Secured Debt of the Issuer or any Subsidiary if, immediately after giving effect
to the incurrence of such additional Secured Debt, the aggregate principal
amount of all outstanding Secured Debt of the Issuer and its Subsidiaries on a
consolidated basis is greater than 40% of Adjusted Total Assets. Debt shall be
deemed to be "incurred" by the Issuer and its Subsidiaries on a consolidated
basis whenever the Issuer and its Subsidiaries on a consolidated basis shall
create, assume, guarantee or otherwise become liable in respect thereof.
In addition to the foregoing limitations on the incurrence of
Debt, the Issuer will not, and will not permit any Subsidiary to, incur any
Debt, other than intercompany Debt, if the ratio of Consolidated Income
Available for Debt Service to the Annual Debt Service Charge for the period
consisting of the four consecutive fiscal quarters most recently ended prior to
the date on which such additional Debt is to be incurred, shall have been less
than 1.5 to 1, on a pro forma basis after giving effect to the incurrence of
such Debt and to the application of the proceeds therefrom, and calculated on
the assumption that (i) such Debt and any other Debt incurred by the Issuer or
its Subsidiaries since the first day of such four-quarter period and the
application of the proceeds therefrom, including to refinance other Debt, had
occurred at the beginning of such period, (ii) the repayment or retirement of
any other Debt by the Issuer or its Subsidiaries since the first day of such
four-quarter period had been repaid or retired at the beginning of such period
(except that, in making such computation, the amount of Debt under any revolving
credit facility shall be computed based upon the average daily balance of such
Debt during such period), and (iii) in the case of any increase or decrease in
Total Assets, or any other acquisition or disposition by the Issuer or any
Subsidiary of any asset or group of assets, since the first day of such
four-quarter period, including, without limitation, by merger, stock purchase or
sale, or asset purchase or sale, such increase, decrease, or other acquisition
or disposition or any related repayment of Debt had occurred as of the first day
of such period with the appropriate adjustments to net income and Debt levels
with respect to such increase, decrease or other acquisition or disposition
being included in such pro forma calculation. For purposes of the adjustments
referred to in clause (iii) of the preceding sentence, any income earned (or
loss incurred) as a result of any such increase, decrease
15
<PAGE> 16
or other acquisition or disposition referred to in clause (iii) for a period
less than such four-quarter period shall be annualized for such four-quarter
period.
The Issuer is required to maintain Total Unencumbered Assets
of not less than 150% of the aggregate outstanding principal amount of the
Unsecured Debt of the Issuer.
A breach of any of the foregoing covenants by the Issuer, and
continuance of such breach for a period of 60 days after there has been given,
by registered or certified mail, to the Issuer by the Trustee or to the Issuer
and the Trustee by the holders of at least 25% in principal amount of the
outstanding Notes a written notice as set forth in the Indenture, shall be an
event of default under the Indenture.
As used herein:
"Annual Debt Service Charge" as of any date means the amount
which is expensed in any 12-month period for interest on Debt of the Issuer and
its Subsidiaries.
"Consolidated Income Available for Debt Service" for any
period means Consolidated Net Income plus amounts which have been deducted in
determining Consolidated Net Income during such period for (i) Consolidated
Interest Expense, (ii) provision for taxes of the Issuer and its Subsidiaries
based on income, (iii) amortization (other than amortization of debt discount)
and depreciation, (iv) provisions for losses from sales or joint ventures, (v)
increases in deferred taxes and other non-cash items, (vi) charges resulting
from a change in accounting principles, and (vii) charges for early
extinguishment of debt, and less amounts which have been added in determining
Consolidated Net Income during such period for (a) provisions for gains from
sales or joint ventures, and (b) decreases in deferred taxes and other non-cash
items.
"Consolidated Interest Expense" means, for any period, and
without duplication, all interest (including the interest component of rentals
on capitalized leases, letter of credit fees, commitment fees and other like
financial charges) and all amortization of debt discount on all Debt (including,
without limitation, payment-in-kind, zero coupon and other like securities) of
the Issuer and its Subsidiaries, but excluding legal fees, title insurance
charges and other out-of-pocket fees and expenses incurred in connection with
the issuance of Debt, all determined in accordance with generally accepted
accounting principles.
"Consolidated Net Income" for any period means the amount of
consolidated net income (or loss) of the Issuer and its Subsidiaries for such
period determined on a consolidated basis in accordance with generally accepted
accounting principles.
"Debt" of the Issuer or any Subsidiary means any indebtedness
of the Issuer and its Subsidiaries, whether or not contingent, in respect of (i)
borrowed money evidenced by bonds, notes, debentures or similar instruments,
(ii) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or
any security interest existing on property owned by the Issuer and its
Subsidiaries, (iii) the reimbursement obligations, contingent or otherwise, in
connection with any letters of credit actually issued or amounts representing
the balance deferred and unpaid of the
16
<PAGE> 17
purchase price of any property except any such balance that constitutes an
accrued expense or trade payable or (iv) any lease of property by the Issuer and
its Subsidiaries as lessee which is reflected in the Issuer's consolidated
balance sheet as a capitalized lease in accordance with generally accepted
accounting principles, in the case of items of indebtedness under (i) through
(iii) above to the extent that any such items (other than letters of credit)
would appear as a liability on the Issuer's consolidated balance sheet in
accordance with generally accepted accounting principles, and also includes, to
the extent not otherwise included, any obligation by the Issuer or any
Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise
(other than for purposes of collection in the ordinary course of business),
indebtedness of another person (other than the Issuer or any Subsidiary) (it
being understood that Debt shall be deemed to be incurred by the Issuer and its
Subsidiaries on a consolidated basis whenever the Issuer and its Subsidiaries on
a consolidated basis shall create, assume, guarantee or otherwise become liable
in respect thereof).
"Secured Debt" means Debt secured by any mortgage, trust deed,
deed of trust, deed to secure debt, security agreement, pledge, conditional sale
or other title retention agreement, capitalized lease, or other like agreement
granting or conveying security title to or a security interest in real property
or other tangible assets.
"Senior Executive Group" shall mean, collectively, those
individuals holding the offices of Chairman, President, Chief Executive Officer,
Chief Operating Officer, or any Executive Vice President of the Company.
"Subsidiary" means (i) any corporation or other entity the
majority of the shares of the non-voting capital stock or other equivalent
ownership interests of which (except directors' qualifying shares) are at the
time directly or indirectly owned by the Issuer or the Company and the majority
of the shares of the voting capital stock or other equivalent ownership
interests of which (except directors' qualifying shares) are at the time
directly or indirectly owned by the Issuer, the Company, any other Subsidiary,
and/or one or more individuals of the Senior Executive Group (or, in the event
of death or disability of any of such individuals, his/her respective legal
representative(s)), or such individuals' successors in office as an officer of
the Company or the Secretary of such Subsidiary, and (ii) any other entity
(other than the Company) the accounts of which are consolidated with the
accounts of the Issuer.
"Total Assets" as of any date means the sum of (i)
Undepreciated Real Estate Assets and (ii) all other assets of the Issuer and its
Subsidiaries on a consolidated basis determined in accordance with generally
accepted accounting principles (but excluding intangibles and accounts
receivable).
"Total Unencumbered Assets" means the sum of (i) those
Undepreciated Real Estate Assets not securing any portion of Secured Debt and
(ii) all other assets of the Issuer and its Subsidiaries not securing any
portion of Secured Debt determined in accordance with generally accepted
accounting principles (but excluding accounts receivable and intangibles).
"Undepreciated Real Estate Assets" as of any date means the
cost (original cost plus capital improvements) of real estate assets of the
Issuer and its Subsidiaries on such date, before
17
<PAGE> 18
depreciation and amortization, determined on a consolidated basis in accordance
with generally accepted accounting principles.
"Unsecured Debt" means Debt of the Issuer or any Subsidiary
that is not Secured Debt.
Neither the Company nor any other partner of the Issuer shall
have any obligation or liability for payment of the Notes, and holders of the
Notes will have no claims or other recourse against the Company or any other
partner of the Issuer, or against any assets of the Company or any other partner
of the Issuer, in respect of the Notes; and the holders of the Notes shall not
have any right to enforce any obligation of a partner to make a contribution to
the Issuer under any provision of the Agreement of Limited Partnership. Neither
the Company nor any other partner of the Issuer nor any of their respective
assets shall be subject to any lien, levy, execution or any other enforcement
procedure relating directly or indirectly to the Notes or any obligations
hereunder; provided, however, that in the event of a dissolution of the Issuer,
any assets of the Issuer that are received by the Company in such dissolution
shall be subject to the claims of the holders of the Notes for the enforcement
of payment thereof. The Issuer covenants that the Company shall not acquire any
assets other than interests in the Issuer and other than such bank accounts or
similar instruments or accounts as necessary to carry out its responsibilities
under the Agreement of Limited Partnership of the Issuer without the prior
written consent of a majority in principal amount of all of the outstanding
Notes. A breach of the foregoing covenant by the Issuer, and continuance of such
breach for a period of 60 days after there has been given, by registered or
certified mail, to the Issuer by the Trustee or to the Issuer and the Trustee by
the holders of at least 25% in principal amount of the outstanding Notes a
written notice as set forth in the Indenture, shall be an event of default under
the Indenture.
The Indenture and this Note shall be governed by and construed
in accordance with the laws of the State of New York applicable to agreements
made and to be performed entirely in such State without regard to conflict of
law principles.
18
<PAGE> 19
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this Note, shall be construed as though they were written out in
full according to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
TEN ENT - as tenants by the entireties ----------- ----------
JT TEN - as joint tenants with right (Cust) (minor)
of survivorship and not as under Uniform Gifts to Minors Act
tenants in common
--------------
(State)
</TABLE>
Additional abbreviations may also be used though not in the
above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_________________
(Please print or typewrite name and address including postal zip code of
assignee)
_________________ this Note and all
rights thereunder hereby irrevocably constituting and appointing
_________________ Attorney to transfer this Note
on the books of the Trustee, with full power of substitution in the premises.
Dated:
------------
---------------------------------------------------
---------------------------------------------------
Notice: The signature(s) on this Assignment must
correspond with the name(s) as written upon the face
of this Note in every particular, without alteration
or enlargement or any change whatsoever.
19
<PAGE> 20
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s)
the Issuer to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount to be repaid,
together with unpaid interest accrued hereon to the Repayment Date, to the
undersigned, at
(Please print or typewrite name and address of the
undersigned)
For this Note to be repaid, the Trustee must receive at its
corporate trust office in the Borough of Manhattan, The City of New York,
currently located at c/o First National Bank of Chicago, 14 Wall Street, Suite
4607, New York, New York 10005, not more than 60 nor less than 30 calendar days
prior to the Repayment Date, this Note with this "Option to Elect Repayment"
form duly completed.
If less than the entire principal amount of this Note is to be
repaid, specify the portion hereof (which shall be increments of U.S. $1,000
(or, if the Specified Currency is other than United States dollars, the minimum
Authorized Denomination specified on the face hereof), which the holder elects
to have repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount to
be Repaid: $__________
-------------------------------------------
Notice: The signature(s) on this Option to
Elect Repayment must correspond with the
name(s) as written upon the face of this
Note in every particular, without alteration
or enlargement or any change whatsoever.
Date:
-------------
20
<PAGE> 1
Exhibit 4(b)
REMARKETING AGREEMENT
REMARKETING AGREEMENT, dated as of April 8, 1998 (this
"Remarketing Agreement" or this "Agreement"), by and between Post Apartment
Homes, L.P. (the "Operating Partnership") and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch").
WHEREAS, the Operating Partnership proposes to issue
$50,000,000 aggregate principal amount of Remarketed Reset Notes Due April 7,
2009 (the "Notes"), such Notes to be issued under an Indenture dated as of
September 25, 1996 (the "Indenture"), by and between the Operating Partnership
and SunTrust Bank, Atlanta, as trustee (the "Trustee"); and
WHEREAS, the Notes are to be initially offered to the public
through Merrill Lynch; and
WHEREAS, the Operating Partnership has requested that Merrill
Lynch to act as Rate Agent (as defined in Section 2(a) hereof) and as
Remarketing Underwriter (as defined in Section 2(a) hereof) in connection with
the Notes and as such to perform the services described herein; and
WHEREAS, Merrill Lynch is willing to act as Rate Agent and as
Remarketing Underwriter in connection with the Notes and as such to perform such
duties on the terms and conditions expressly set forth herein.
NOW, THEREFORE, for and in consideration of the covenants
herein made, and subject to the conditions herein set forth, the parties hereto
agree as follows:
Section 1. Definitions. Capitalized terms used and not defined
in this Agreement shall have the respective meanings assigned to them in the
Notes or, if not defined therein, in the Indenture relating to the Notes.
Section 2. Appointment and Obligations of Merrill Lynch. (a)
The Operating Partnership hereby appoints Merrill Lynch, and Merrill Lynch
hereby accepts such appointment, (i) as the rate agent (the "Rate Agent") of the
Operating Partnership for the Notes to determine (1) LIBOR and the interest rate
on the Notes for any Quarterly Period, and/or (2) the yield to maturity on the
applicable United States Treasury security that is used in connection with the
determination of the applicable Fixed Rate, and the ensuing applicable Fixed
Rate and (ii) as the exclusive remarketing underwriter (the "Remarketing
Underwriter") for the purpose of (x) recommending to the Operating Partnership
the Spread for each Subsequent Spread Period that, in the opinion of the
Remarketing Underwriter, will enable the Remarketing Underwriter to remarket,
for delivery on the Tender Date, tendered Notes at 100% of the principal amount
thereof, (y) if the Operating Partnership and the Remarketing Underwriter agree
on the Spread referred to in (x) above, entering into a remarketing underwriting
agreement (each, a "Remarketing Underwriting Agreement") with the Operating
Partnership, substantially in the form attached hereto as Exhibit A, pursuant to
which the Remarketing Underwriter will agree to purchase the Notes tendered by
the beneficial owners thereof (the "Beneficial Owners")
<PAGE> 2
and remarket such Notes (each such purchase and remarketing being hereinafter
referred to as a "Remarketing"), and (z) performing such other duties as are
assigned to the Remarketing Underwriter in the Notes and/or the Indenture and/or
the applicable Remarketing Underwriting Agreement.
(b) The Rate Agent hereby agrees to determine LIBOR
on each LIBOR Determination Date in accordance with the following provisions and
the other relevant provisions of the Notes:
(i) LIBOR shall be determined on the basis
of the offered rates for three-month deposits in U.S.
dollars commencing on the second London Business Day
immediately following the applicable LIBOR
Determination Date, which appears on Telerate Page
3750 as of approximately 11:00 a.m., London time, on
such LIBOR Determination Date. If no rate appears on
Telerate Page 3750, LIBOR for the applicable LIBOR
Determination Date will be determined in accordance
with the provisions of paragraph (ii) below.
(ii) With respect to a LIBOR Determination
Date on which no rate appears on Telerate Page 3750
as of approximately 11:00 a.m., London time, on the
applicable LIBOR Determination Date, the Rate Agent
shall select four major reference banks in the London
interbank market and shall request the principal
London offices of each such bank to provide it with a
quotation of the rate at which three-month deposits
in U.S. dollars, commencing on the second London
Business Day immediately following such LIBOR
Determination Date, are offered by it to prime banks
in the London interbank market as of approximately
11:00 a.m., London time, on such LIBOR Determination
Date and in a principal amount equal to an amount of
not less than U.S. $1,000,000 that is representative
for a single transaction in such market at such time.
If at least two such quotations are provided, LIBOR
for the applicable LIBOR Determination Date will be
the arithmetic mean of such quotations as calculated
by the Rate Agent. If fewer than two quotations are
provided, the Rate Agent, after consultation with the
Operating Partnership, shall select three major banks
in The City of New York and shall request each such
bank to provide it with the rates quoted by such bank
as of approximately 11:00 a.m., New York City time,
on such LIBOR Determination Date for loans in U.S.
dollars to leading European banks, having a
three-month maturity, commencing on the second London
Business Day immediately following such LIBOR
Determination Date and in a principal amount equal to
an amount of not less than U.S. $1,000,000 that is
representative for a single transaction in such
market at such time, and LIBOR for such LIBOR
Determination Date shall be the arithmetic mean of
such rates; provided, however, that if the banks
selected as aforesaid by the Rate Agent are not
quoting as mentioned in this sentence, LIBOR for such
- 2 -
<PAGE> 3
LIBOR Determination Date will be the LIBOR
determined with respect to the immediately preceding
LIBOR Determination Date, or in the case of the first
LIBOR Determination Date, LIBOR for the Initial
Quarterly Period.
(c) The Rate Agent hereby agrees to determine the
yield to maturity on the applicable United States Treasury security that is used
in connection with the determination of the applicable Fixed Rate, and the
ensuing applicable Fixed Rate, in accordance with this Section 2(c): If the
Notes are to be reset to the Fixed Rate Mode, as agreed to by the Operating
Partnership and the Remarketing Underwriter on a Duration/Mode Determination
Date, then the applicable Fixed Rate for the corresponding Subsequent Spread
Period will be determined by 1:00 p.m., New York City time, on the third
Business Day prior to the Commencement Date for the Subsequent Spread Period
(the "Fixed Rate Determination Date"). The Fixed Rate will be a per annum rate
and will be determined by adding (i) the applicable Spread (as agreed to by the
Operating Partnership and the Remarketing Underwriter on the preceding Spread
Determination Date) to (ii) the yield to maturity determined by 1:00 p.m., New
York City time, on the Fixed Rate Determination Date (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the applicable United States Treasury security,
selected by the Rate Agent after consultation with the Remarketing Underwriter,
as having a maturity comparable to the duration selected for the following
Subsequent Spread Period, which would be used in accordance with customary
financial practice in pricing new issues of corporate debt securities of
comparable maturity to the duration selected for the following Subsequent Spread
Period.
Section 3. Fees and Expenses. The obligations of the Operating
Partnership to pay to the Remarketing Underwriter on each Tender Date the fees
set forth in the applicable Remarketing Underwriting Agreement shall survive the
termination of this Agreement and remain in full force and effect until all such
payments shall have been made in full. The Operating Partnership will pay all
expenses of the Remarketing Underwriter in connection with the Remarketing
Underwriting Agreement, including: (a) the preparation, filing, printing and
delivery of the prospectus, if any, and any amendments or supplements thereto
and any Remarketing Memorandum (as defined in the Remarketing Underwriting
Agreement) in connection with the Remarketing of the Notes; (b) the preparation
and delivery of this Agreement, the Remarketing Underwriting Agreement, the
Indenture and such other documents as may be required in connection with the
Remarketing of the Notes; (c) the fees and disbursements of the Operating
Partnership's accountants, counsel and other advisors or agents (including any
calculation agent or exchange rate agent) and of the fees and disbursements of
the Trustee; (d) the fees charged by nationally recognized statistical rating
organizations for the rating of the Notes; and (e) the preparation, issuance and
delivery to the Depository Trust Company for credit to the account of the
Remarketing Underwriter of any global note registered in the name of Cede & Co.,
as nominee for the Depository Trust Company.
- 3 -
<PAGE> 4
Section 4. Removal of the Rate Agent and Remarketing
Underwriter. With respect to any Subsequent Spread Period, the Operating
Partnership may, in its absolute discretion, remove the Rate Agent and
Remarketing Underwriter by giving notice to the Rate Agent and Remarketing
Underwriter prior to 3:00 p.m., New York City time, on the Duration/Mode
Determination Date applicable thereto, such removal to be effective upon the
Operating Partnership's appointment of a successor Rate Agent and Remarketing
Underwriter. In such case, the Operating Partnership will use its best efforts
to appoint a successor Rate Agent and Remarketing Underwriter and enter into
such a remarketing agreement with such persons as soon as reasonably
practicable.
Section 5. Dealing in the Notes. Subject to its compliance
with applicable laws and regulations, Merrill Lynch, when acting as a Rate Agent
and Remarketing Underwriter or in its individual or any other capacity, may buy,
sell, hold and deal in any of the Notes. Merrill Lynch may exercise any vote or
join in any action which any Beneficial Owner of Notes may be entitled to
exercise or take pursuant to the Indenture with like effect as if it did not act
in any capacity hereunder. Merrill Lynch, in its individual capacity, either as
principal or agent, may also engage in or have an interest in any financial or
other transaction with the Operating Partnership as freely as if it did not act
in any capacity hereunder.
Section 6. Current Prospectus. If Merrill Lynch determines,
based upon advice of counsel, that changes in applicable law, regulations or
interpretations of the Securities and Exchange Commission (the "Commission")
make it necessary or advisable to file a new registration statement with the
Commission and/or deliver a current prospectus in connection with a Remarketing,
the Operating Partnership shall file a new registration statement with the
Commission, in a form reasonably acceptable to Merrill Lynch and its counsel,
and furnish a current prospectus to be used by the Remarketing Underwriter in
such Remarketing, as applicable.
Section 7. Representations and Warranties of the Operating
Partnership. The Operating Partnership represents and warrants to Merrill Lynch
as of the date hereof, and as of each Tender Date, as follows:
(a) The Operating Partnership has made all filings
with the Commission that it is required to make under the Securities
Exchange Act of 1934, as amended (the "1934 Act") and the rules and
regulations thereunder (the "1934 Act Regulations") (collectively, the
"1934 Act Documents"). Each 1934 Act Document complies in all material
respects with the requirements of the 1934 Act and the 1934 Act
Regulations, and each 1934 Act Document did not, at the time of filing
with the Commission, and will not, as of each Tender Date, as modified
or superseded by any subsequently filed 1934 Act Document on or prior
to such Tender Date, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(b) As of the date hereof and at each Tender Date,
any prospectus and any Remarketing Memorandum relating to the Notes and
any amendments and supplements thereto did not and will not contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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<PAGE> 5
(c) The accounting firm that certified the financial
statements and supporting schedules included in, or incorporated by
reference into, the 1934 Act Documents, is an independent public
accountant as required by the Securities Act of 1933, as amended (the
"1933 Act") and the rules and regulations thereunder (the "1933 Act
Regulations").
(d) The consolidated financial statements of Post
Properties, Inc. (the "Company") and the Operating Partnership
included in the Operating Partnership's most recently filed Annual
Report on Form 10-K, Quarterly Reports on Form 10-Q, if any, and
Current Reports on Form 8-K, if any, filed since the latest Annual
Report on Form 10-K, together with the related schedules and notes, as
well as those financial statements, schedules and notes of any other
entity included therein, if any, present fairly the financial position
of the Company, the Operating Partnership and their consolidated
subsidiaries, or such other entities, as the case may be, at the
respective dates indicated and the statement of operations,
shareholders' equity, partners' equity, and cash flows of the Company,
the Operating Partnership and their consolidated subsidiaries, or such
other entities, as the case may be, for the periods specified. Such
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included in the 1934 Act Documents present fairly the information
required to be stated therein. The selected financial data and the
summary financial information, if any, included in the Operating
Partnership's 1934 Act Documents present fairly the information shown
therein and have been compiled on a basis consistent with that of the
audited financial statements included in, or incorporated by reference
into, the 1934 Act Documents. The Company's and the Operating
Partnership's ratios of earnings to fixed charges and ratios of
earnings to fixed charges and preferred stock dividends (actual and,
if any, pro forma) included in the 1934 Act Documents have been
calculated in compliance with Item 503(d) of Regulation S-K of the
Commission. In addition, any pro forma financial statements included
in, or incorporated by reference into, the 1934 Act Documents comply
in all material respects with the, or incorporated by reference into,
applicable requirements of Rule 11-02 of Regulation S-X of the
Commission, and the assumptions used in the preparation thereof are,
in the opinion of the Company, reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein and have been properly applied to
the historical amounts in the compilation of such statements. Other
than the historical financial statements (and schedules) included
therein, no other historical or pro forma financial statements (or
schedules) are required to be included in the 1934 Act Documents.
(e) Since the respective dates as of which
information is given in the 1934 Act Documents, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, assets, business
affairs or business prospects of the Operating Partnership and its
Subsidiaries considered as one enterprise (a "Material Adverse
Effect"), whether or not arising in the ordinary course of business;
(B) no casualty loss or condemnation or other adverse event with
respect to any of the interests held directly or indirectly in any of
the real properties owned, directly or indirectly, by the Operating
Partnership or its Subsidiaries (the "Properties") has occurred that is
material to
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<PAGE> 6
the Operating Partnership and its Subsidiaries considered as one
enterprise; (C) there have been no transactions entered into by the
Operating Partnership or any Subsidiary, other than those arising in
the ordinary course of business, which are material with respect to the
Operating Partnership and its Subsidiaries considered as one enterprise
or that would result, upon consummation, in any material inaccuracy in
the representations contained in Section 7(a) above; (D) neither the
Operating Partnership nor any Subsidiary has incurred any material
obligation or liability, direct, contingent or otherwise; and (E) there
has been no material change in the short-term debt or long-term debt of
the Operating Partnership.
(f) The Operating Partnership has been duly formed
and is validly existing as a limited partnership in good standing under
the Georgia Revised Uniform Limited Partnership Act (the "Georgia Act")
with partnership power and authority to own, lease and operate its
properties, to conduct the business in which it is engaged and to enter
into and perform its obligations under or as contemplated under this
Remarketing Agreement, the Remarketing Underwriting Agreement and the
other agreements to which it is a party. The Operating Partnership is
duly qualified or registered as a foreign partnership and is in good
standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership, leasing
or management of property or the conduct of business, except where the
failure to so qualify or register would not have a Material Adverse
Effect.
(g) Each corporation or a partnership a majority of
the outstanding equity interests of which is owned or controlled,
directly or indirectly, by the Company or the Operating Partnership,
as the case may be, or by one or more other Subsidiaries of the
Company or the Operating Partnership (the "Subsidiaries") has been
duly formed and is validly existing and in good standing under the
laws of its jurisdiction of organization with partnership or corporate
power and authority to conduct the business in which it is engaged
and to own, lease and operate its properties as described in the 1934
Act Documents and to enter into and perform its obligations under any
agreements to which it is a party. Each of the Subsidiaries is duly
qualified as a foreign partnership, corporation or other organization
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property, the management of properties by
others or the conduct of business, except where the failure to so
qualify would not have a Material Adverse Effect.
(h) All of the issued and outstanding shares of
capital stock and partnership interests, as the case may be, of each
Subsidiary have been validly issued and fully paid and are owned by the
Operating Partnership, the Company, another Subsidiary, and/or certain
affiliated entities as described in the 1934 Act Documents, in each
case free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity, other than the transfer restrictions set
forth in the Option and Transfer Agreement by and among the Operating
Partnership, Post Services, Inc., John A. Williams and John T. Glover.
Except as otherwise disclosed
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<PAGE> 7
in the 1934 Act Documents, the Operating Partnership owns no direct or
indirect equity interest in any entity other than its Subsidiaries.
(i) The authorized, issued and outstanding
partnership interests of the Operating Partnership are as set forth in
the Operating Partnership's financial statements included in or
incorporated by reference into the 1934 Act Documents (except for
subsequent issuances thereof, if any, contemplated pursuant to
reservations, agreements or employee benefit plans or pursuant to the
exercise of convertible securities or options). Such partnership
interests have been duly authorized and validly issued by the Operating
Partnership and are fully paid and none of such partnership interests
were issued in violation of preemptive or other similar rights of any
securityholder of the Operating Partnership.
(j) This Remarketing Agreement has been duly
authorized, executed and delivered by the Operating Partnership. The
execution and delivery by the Operation Partnership of the Remarketing
Underwriting Agreement has been duly authorized by all necessary
partnership action of the Operating Partnership
(k) The Operating Partnership has full power and
authority to enter into and perform its obligations under this
Agreement and this Agreement has been duly authorized, executed and
delivered by the Operating Partnership and, assuming due
authorization, execution and delivery by the other parties thereto, is
a valid and binding agreement of the Operating Partnership enforceable
against the Operating Partnership in accordance with its terms, except
as (A) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or similar
laws affecting creditors' rights generally, (B) the availability of
equitable remedies may be limited by equitable principles of general
applicability, and (C) rights to indemnity and contribution thereunder
may be limited by state or federal securities laws or the public
policy underlying such laws.
(l) The Indenture (A) has been duly authorized,
executed and delivered by the Operating Partnership, and, assuming due
authorization, execution and delivery by the Trustee, constitutes a
valid and binding obligation of the Operating Partnership, enforceable
against the Operating Partnership in accordance with its terms, subject
to (i) applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or similar laws affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in equity
and except the effect on enforceability of (x) requirements that a
claim with respect to any Notes payable other than in U.S. dollars (or
a foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (y) federal or state law
limiting, delaying or prohibiting the making of payments outside the
United States; and (B) conforms in all material respects to the
description thereof in the Prospectus relating to the initial issuance
of the Notes.
(m) The Notes have been duly authorized by the
Operating Partnership for offer, sale, issuance and delivery pursuant
to the Distribution Agreement and the Terms Agreement and when issued
and authenticated in the manner provided for in the Indenture and
delivered against payment of the consideration therefor specified in
the Terms Agreement, will constitute valid and
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<PAGE> 8
legally binding obligations of the Operating Partnership, entitled to
the benefits of the Indenture enforceable against the Operating
Partnership in accordance with its terms, subject to (i) applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer
or similar laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity and except the effect on
enforceability of (a) requirements that a claim with respect to any
Notes payable other than in U.S. dollars (or a foreign or composite
currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (b) federal or state law limiting, delaying or
prohibiting the making of payments outside the United States. Such
Notes will be in the form contemplated by, and each registered holder
thereof is entitled to the benefits of, the applicable Indenture. Such
Notes rank and will rank on a parity with all unsecured and
unsubordinated indebtedness of the Operating Partnership that is
outstanding on the date hereof and on each Tender Date as herein
contemplated or that may be incurred thereafter, except that such Notes
will be effectively subordinated to the prior claims of each secured
mortgage lender to any specific Property which secures such lender's
mortgage.
(n) Neither the Operating Partnership nor any of its
Subsidiaries is in violation of its charter, by-laws, certificate of
limited partnership, partnership agreement or LLC agreement, as the
case may be, or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which it or any of them is a
party or by which any of them may be bound, or to which any of their
property or assets is subject, except for such defaults that could not
result in a Material Adverse Effect. The execution, delivery and
performance of this Remarketing Agreement, the Remarketing Underwriting
Agreement and the Indenture and the execution and delivery of the Notes
and the transactions contemplated herein or therein, including the
issuance, sale and delivery of the Notes and the use of the proceeds
from the sale of the Notes as described in the Prospectus relating to
the initial issuance of the Notes under the caption "Use of Proceeds,"
and compliance by the Operating Partnership with its obligations
hereunder and thereunder, (A) do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or operations of the
Operating Partnership or any of its Subsidiaries pursuant to, any
material contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Operating Partnership or any of its Subsidiaries is a party or by which
it or any of them may be bound, or to which any of their properties or
assets is subject, nor (B) will such action result in any violation of
the provisions of the (i) charter, bylaws, LLC agreement or partnership
agreement of the Operating Partnership or any Subsidiary, as the case
may be, or (ii) any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government agency or
court, domestic or foreign, having jurisdiction over the Operating
Partnership or any Subsidiary or any of their assets, properties or
operations, except any violation
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<PAGE> 9
that could not result in a Material Adverse Effect. As used herein, a
"Repayment Event" means any event or condition which gives the holder
of any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Operating Partnership or any Subsidiary.
(o) No labor dispute with the employees of the
Company, the Operating Partnership or any Subsidiary exists or, to the
knowledge of the Operating Partnership, is imminent, which may result
in a Material Adverse Effect.
(p) There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or foreign, now
pending, or to the knowledge of the Operating Partnership threatened
against or affecting the Operating Partnership, any Subsidiary thereof,
any Property or any officer or director of the foregoing, which is
required to be disclosed in the 1934 Act Documents (other than as
stated therein), or which could reasonably be expected to result in a
Material Adverse Effect, or which might materially and adversely affect
the consummation of this Remarketing Agreement, the Remarketing
Underwriting Agreement, the Indenture, the Notes or the transactions
contemplated herein or therein or the performance by the Operating
Partnership of its obligations under this Remarketing Agreement, the
Remarketing Underwriting Agreement, the Indenture or the Notes. There
is no pending legal or governmental proceedings to which the Operating
Partnership or any Subsidiary is a party or of which any of their
respective assets or properties is subject which could reasonably be
expected to result in a Material Adverse Effect.
(q) There are no contracts or documents of the
Company or the Operating Partnership which are required to be described
in the 1934 Act Documents or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and/or filed as required.
(r) No authorization, approval or consent of any
court or governmental authority or agency is necessary or required for
the performance by the Operating Partnership of its obligations under
this Remarketing Agreement, the Remarketing Underwriting Agreement, the
Indenture and the Notes or in connection with the transactions
contemplated under this Remarketing Agreement, the Remarketing
Underwriting Agreement, the Indenture or the Notes or in connection
with the Remarketing of the Notes hereunder, except such as have been
already obtained or as may be required under the 1933 Act, the 1939
Act, the 1933 Act Regulations or state securities or real estate
syndication laws or the rules of the National Association of Securities
Dealers, Inc. ("NASD").
(s) The Operating Partnership and its Subsidiaries
own or possess trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the
Operating Partnership nor any of its Subsidiaries has received any
notice or is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or
of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the
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<PAGE> 10
interest of the Operating Partnership or any of its Subsidiaries
therein, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would result in a Material Adverse Effect.
(t) Each of the Operating Partnership and its
Subsidiaries has all permits, licenses, approvals, consents,
certificates and other authorizations of and from (collectively,
"Governmental Licenses") and has made all declarations and filings with
all appropriate federal, state, local, foreign and other governmental
authorities, all self regulatory organizations and all courts and other
tribunals required for it to own, lease, license and use its properties
and assets and to conduct its business in the manner described in the
1934 Act Documents, other than such Governmental Licenses the absence
of which, singly or in the aggregate, could be reasonably likely to
result in a Material Adverse Effect. Neither the Operating Partnership
nor any of its Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, could be reasonably likely to
result in a Material Adverse Effect.
(u) (A) Except as otherwise set forth in the 1934 Act
Documents, the Operating Partnership has good and marketable fee simple
title to the land underlying the Properties and good and marketable
title to the improvements thereon and all other assets that are
required for the effective operation of such Properties in the manner
in which they currently are operated, subject, however, to mortgages on
such Properties, to utility easements serving such Properties, to liens
of ad valorem taxes not due and payable, to zoning and similar
governmental land use matters affecting such Properties that are
consistent with the current uses of such Properties, to matters of
title not adversely affecting marketability of title to such
Properties, other statutory liens not due and payable, title matters
that may be material in character, amount or extent but which do not
materially detract from the value, or interfere with the use of, the
Properties or otherwise materially impair the business operations being
conducted or proposed to be conducted thereon, ownership of cable
television lines and facilities serving one or more of such Properties
by the cable television providers or their affiliates, service marks
and trade names used in connection with such Properties, and ownership
by others of certain items of equipment and other items of personal
property that are not material to the conduct of business operations at
such Properties; (B) the ground lease under which the Operating
Partnership leases the land on which any Property is located is in full
force and effect, and the Operating Partnership is not in default in
respect of any of the terms or provisions of any such lease and the
Operating Partnership has not received notice of the assertion of any
claim by anyone adverse to the Operating Partnership's rights as lessee
under any such lease, or affecting or questioning the Operating
Partnership's right to the continued possession or use of the Property
under any such lease or of a default under any such lease, other than
claims which would not have a Material Adverse Effect; (C) all liens,
charges, encumbrances, claims, or restrictions on or affecting any of
the Properties and the assets of the Operating Partnership or any
Subsidiary which are required to be disclosed in the 1934 Act Documents
are disclosed therein; (D) none of the Operating
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<PAGE> 11
Partnership or any tenant of any of the Properties is in default under
any of the leases pursuant to which the Operating Partnership, as
lessor, leases its Property (and the Operating Partnership does not
know of any event which, but for the passage of time or the giving of
notice, or both, would constitute a default under any of such leases)
other than such defaults that would not have a Material Adverse Effect;
(E) except as otherwise set forth in the 1934 Act Documents or to the
extent not material to the Operating Partnership, no person has an
option or right of first refusal to purchase all or part of any
Property or any interest therein; (F) each of the Properties complies
with all applicable codes, laws and regulations (including, without
limitation, building and zoning codes, laws and regulations and laws
relating to access to the Properties), except to the extent disclosed
in the 1934 Act Documents and except for such failures to comply that
would not individually or in the aggregate have a Material Adverse
Effect; (G) the Operating Partnership does not have knowledge of any
pending or threatened condemnation proceedings, zoning change, or other
similar proceeding or action that will in any manner affect the size
of, use of, improvements on, construction on or access to the
Properties, except such proceedings or actions that would not have a
Material Adverse Effect; and (H) other than with respect to the
Property known as "Post Woods," the Operating Partnership is the
beneficiary of title insurance on the Properties in amounts that were
commercially reasonable at the time such policies were issued, and in
each case such title insurance is in full force and effect.
(v) The Operating Partnership is not an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "1940 Act"), and is not or will not become (as a result of
the transactions contemplated hereby) a "holding company" or a
"subsidiary company" of a "registered holding company," as defined in
the Public Utility Holding Company Act of 1935, as amended.
(w) Except as disclosed in the 1934 Act Documents,
(A) each Property, including, without limitation, the Environment (as
defined below) associated with each Property, is free of any Hazardous
Substance (as defined below) in violation of any Environmental Law (as
defined below) applicable to the Properties, except for any Hazardous
Substance that would not have any Material Adverse Effect; (B) neither
the Operating Partnership nor any Subsidiary has caused or suffered to
occur any Release (as defined below) of any Hazardous Substance into
the Environment on, in, under or from any Property in violation of any
Environmental Law applicable to such Property, and no condition exists
on, in or under any Property or, to the knowledge of the Operating
Partnership, any property adjacent to any Property that could result in
the occurrence of liabilities under, or any violations of, any
Environmental Law applicable to such Property, give rise to the
imposition of any Lien (as defined below) under any Environmental Law,
or cause or constitute a health, safety or environmental hazard to any
property, person or entity except any violation which could not be
reasonably likely to result in a Material Adverse Effect; (C) neither
the Operating Partnership nor any Subsidiary is engaged in or intends
to engage in any manufacturing or any similar operations at any
Property that (1) require the use, handling, transportation, storage,
treatment or disposal of any Hazardous Substance (other than paints,
stains, cleaning solvents, insecticides, herbicides, or other
substances
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<PAGE> 12
that are used in the ordinary course of operating any Property and in
compliance with all applicable Environmental Laws) or (2) require
permits or are otherwise regulated pursuant to any Environmental Law;
(D) except as otherwise set forth in the 1934 Act Documents, neither
the Operating Partnership nor any Subsidiary has received any notice of
a claim under or pursuant to any Environmental Law applicable to a
Property or under common law pertaining to Hazardous Substances on any
Property or pertaining to other property at which Hazardous Substances
generated at any Property have come to be located which could be
reasonably likely to result in a Material Adverse Effect; (E) except as
otherwise set forth in the 1934 Act Documents, neither the Operating
Partnership nor any Subsidiary has received any notice from any
Governmental Authority (as defined below) claiming any violation of any
Environmental Law that is uncured or unremediated as of the date hereof
which could reasonably be likely to result in a Material Adverse
Effect; and (F) except as otherwise set forth in the 1934 Act
Documents, no Property (1) is included or, to the knowledge of the
Operating Partnership or any Subsidiary, proposed for inclusion on the
National Priorities List issued pursuant to CERCLA (as defined below)
by the United States Environmental Protection Agency (the "EPA") or on
the Comprehensive Environmental Response, Compensation, and Liability
Information System database maintained by the EPA as a potential CERCLA
removal, remedial or response site or (2) is included or proposed for
inclusion on, any similar list of potentially contaminated sites
pursuant to any other applicable Environmental Law nor has the
Operating Partnership, or any subsidiary received any written notice
from the EPA or any other Governmental Authority proposing the
inclusion of any Property on such list.
As used herein, "Hazardous Substance" shall include,
without limitation, any hazardous substance, hazardous waste, toxic or
dangerous substance, pollutant, solid waste or similarly designated
materials, including, without limitation, oil, petroleum, or any
petroleum-derived substance or waste, asbestos or asbestos-containing
materials, PCBs, pesticides, explosives, radioactive materials,
dioxins, urea formaldehyde insulation or any constituent of any such
substance, pollutant or waste, including any such substance, pollutant
or waste identified, listed or regulated under any Environmental Law
(including, without limitation, materials listed in the United States
Department of Transportation Optional Hazardous Material Table, 49
C.F.R. ss. 172.101, as the same may now or hereafter be amended, or in
the EPA's List of Hazardous Substances and Reportable Quantities, 40
C.F.R. Part 3202, as the same may now or hereafter be amended);
"Environment" shall mean any surface water, drinking water, ground
water, land surface, subsurface strata, river sediment, buildings,
structures, and ambient, workplace and indoor air; "Environmental Law"
shall mean the Comprehensive Environmental Response, Compensation and
Liability Act, as amended (42 U.S.C. ss. 9601, et seq.) ("CERCLA"), the
Resource Conservation Recovery Act, as amended (42 U.S.C. ss. 6901, et
seq.), the Clean Air Act, as amended (42 U.S.C. ss. 7401, et seq.), the
Clean Water Act, as amended (33 U.S.C. ss. 1251, et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. ss. 2601 et seq.), the
Occupational Safety and Health Act of 1970, as amended (29 U.S.C. ss.
651, et seq.), the Hazardous Materials Transportation Act, as amended
(49 U.S.C. ss. 1801, et seq.), together with all rules, regulations and
orders promulgated thereunder and all other federal, state and
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<PAGE> 13
local laws, ordinances, rules, regulations and orders relating to the
protection of the environment or of human health from environmental
effects; "Governmental Authority" shall mean any federal, state or
local governmental office, agency or authority having the duty or
authority to promulgate, implement or enforce any Environmental Law;
"Lien" shall mean, with respect to any Property, any material mortgage,
deed of trust, pledge, security interest, lien, encumbrance, penalty,
fine, charge, assessment, judgment or other liability in, on or
affecting such Property; and "Release" shall mean any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, emanating or disposing of any Hazardous
Substance into the Environment including, without limitation, the
abandonment or discard of barrels, containers, tanks (including,
without limitation, underground storage tanks) or other receptacles
containing or previously containing any Hazardous Substance or any
release, emission, discharge or similar term, as those terms are
defined or used in any Environmental Law.
(x) Each of the Operating Partnership and its
Subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged.
(y) The assets of the Operating Partnership do not
constitute "plan assets" under the Employee Retirement Income Security
Act of 1974, as amended.
(z) Except as otherwise set forth in the 1934 Act
Documents the mortgages and deeds of trust encumbering the properties
and assets are not convertible and are not cross-defaulted or
cross-collateralized to any property not owned by the Operating
Partnership or any of its Subsidiaries; except as otherwise disclosed
in the 1934 Act Documents, none of the Operating Partnership or any of
its Subsidiaries holds participating interests in such mortgages and
deeds of trust.
(aa) The partnership agreement of the Operating
Partnership (the "Operating Partnership Agreement") has been duly
authorized, executed and delivered by the parties thereto and
constitutes the valid agreement thereof, enforceable in accordance with
its terms, except as (A) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and (B) the availability of
equitable remedies may be limited by equitable principles of general
applicability; and the execution, delivery and performance of the
Operating Partnership Agreement did not, at the time of execution and
delivery, and does not constitute a breach of, or default under any
material contract, lease or other instrument to which the Operating
Partnership is a party or by which its properties may be bound or any
law, administrative regulation or administrative or court decree.
(bb) The Company was organized and has operated in
conformity with the requirements for qualification and taxation as a
REIT for each of its taxable years beginning with the year ended
December 31, 1993, and its current organization and method of operation
should enable it to continue to meet the requirements for qualification
and taxation as a REIT.
- 13 -
<PAGE> 14
(cc) The Operating Partnership and each of the
Subsidiary Partnerships are properly classified as partnerships, and
not as corporations or as associations taxable as corporations, for
Federal income tax purposes throughout the period from July 22, 1993
through the date hereof, or, in the case of any Subsidiary Partnerships
that have terminated, through the date of termination of such
Subsidiary Partnerships.
(dd) Each of the Company, the Operating Partnership
and its Subsidiaries has filed all federal, state, local and foreign
income tax returns which have been required to be filed (except in any
case in which the failure to file would not have a Material Adverse
Effect) and has paid all taxes required to be paid and any other
assessment, fine or penalty levied against it, to the extent that any
of the foregoing is due and payable, except, in all cases, for any such
tax, assessment, fine or penalty that is being contested in good faith.
(ee) The Notes are rated Baa1 by Moody's Investors
Service, Inc. and BBB+ by Standard & Poor's Ratings Service.
(ff) Any certificate signed by any officer of the
Operating Partnership (or any officer of the general partner of the
Operating Partnership) or any of its Subsidiaries and delivered to any
Underwriter or to counsel for the Underwriter in connection with the
offering of Notes shall be deemed a representation and warranty by the
Operating Partnership to each Underwriter as to the matters covered
thereby on the date of such certificate and, unless subsequently
amended or supplemented, at each Closing Date subsequent thereto.
References in the foregoing representations and warranties to
the 1934 Act Documents shall be deemed to refer to the registration statement,
prospectus and Remarketing Memorandum, if any, in each case including the
documents incorporated by reference therein, if any of such documents are
required pursuant to Section 6 hereof.
Section 8. Conditions to the Remarketing Underwriter's
Obligations. The obligations of the Remarketing Underwriter to purchase and
remarket the Notes shall be subject to the terms and conditions of the
applicable Remarketing Underwriting Agreement.
Section 9. Indemnification.
(a) Indemnification. The Operating Partnership agrees
to indemnify and hold harmless the Remarketing Underwriter and each
person, if any, who controls the Remarketing Underwriter within the
meaning of Section 20 of the 1934 Act and any director, officer,
employee or affiliate thereof, as follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, arising out of (A)
the failure to have an effective registration statement under the 1933
Act, relating to the Notes, if required, or the failure to satisfy the
prospectus delivery requirements of the 1933 Act because the Operating
Partnership failed to provide the Remarketing Underwriter with a
prospectus for delivery, or (B) any untrue statement or alleged untrue
statement of a
- 14 -
<PAGE> 15
material fact contained in the registration statement or Remarketing
Memorandum, if any, or any amendment thereto (including any documents
incorporated by reference therein), or (C) the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading, or (D) any
violation by the Operating Partnership of, or any failure by the
Operating Partnership to perform any of its obligations under, this
Agreement or (E) the acts or omissions of the Rate Agent in connection
with its duties and obligations hereunder except those that are finally
judicially determined to be due to its gross negligence or willful
misconduct;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever arising out of, or
based upon, any of items (A) through (E) of clause (i) above; provided
that (subject to Section 9(d) hereof) any such settlement is effected
with the written consent of the Operating Partnership, which consent
shall not be unreasonably withheld; and
(iii) against any and all expense
whatsoever, as incurred (including the fees and disbursements of
counsel chosen by the Remarketing Underwriter), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever arising out of, or
based upon, any of items (A) through (E) of clause (i) above to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Operating Partnership by
the Remarketing Underwriter expressly for use in the Remarketing Memorandum or
registration statement (or any amendment thereto), if applicable.
(b) Indemnification of Operating Partnership,
Directors and Officers. The Remarketing Underwriter agrees to indemnify
and hold harmless the Operating Partnership, its directors, officers,
employees and affiliates, and each person, if any, who controls the
Operating Partnership within the meaning of Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 9(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Remarketing
Memorandum or registration statement (or any amendment thereto), if
applicable, in reliance upon and in conformity with written information
furnished to the Operating Partnership by the Remarketing Underwriter
expressly for use in such Remarketing Memorandum or registration
statement (or any amendment thereto).
(c) Actions Against Parties; Notification. Each
indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against
it in respect of which indemnity may be sought
- 15 -
<PAGE> 16
hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 9(a) above, counsel to the
indemnified parties shall be selected by the Remarketing Underwriter.
In the case of parties indemnified pursuant to Section 9(b) above,
counsel to the indemnified parties shall be selected by the Operating
Partnership. An indemnifying party may participate at its own expense
in the defense of such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no
event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any one local counsel) separate
from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 9 or
10 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) Settlement without Consent if Failure to
Reimburse. If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section
9(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior
to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with
such request prior to the date of such settlement.
(e) Continuation of Indemnification. The indemnity
agreements contained in this Section 9 shall remain operative and in
full force and effect, regardless of any investigation made by or on
behalf of the Remarketing Underwriter, and shall survive the
termination or cancellation of this Agreement and the remarketing of
any Notes hereunder.
Section 10. Contribution. If the indemnification provided for
in Section 9 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion
- 16 -
<PAGE> 17
as is appropriate to reflect the relative benefits received by the Operating
Partnership, on the one hand, and the Remarketing Underwriter, on the other
hand, from the remarketing of the Notes pursuant to this Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Operating
Partnership, on the one hand, and the Remarketing Underwriter, on the other
hand, in connection with the acts, failures to act, statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Operating Partnership,
on the one hand, and the Remarketing Underwriter, on the other hand, in
connection with the remarketing of the Notes pursuant to this Agreement shall be
deemed to be in the same respective proportions as (i) the aggregate principal
amount of the Notes and (ii) the aggregate positive difference, if any, between
the price at which the Notes are sold by the Remarketing Underwriter in the
remarketing and the price paid by the Remarketing Underwriter for the Notes
tendered on a Tender Date.
The relative fault of the Operating Partnership, on the one
hand, and the Remarketing Underwriter, on the other hand, shall be determined by
reference to, among other things, the responsibility hereunder of the applicable
party for any act or failure to act relating to the losses, liabilities, claims,
damages or expenses incurred or, in the case of any losses, liabilities, claims,
damages or expenses arising out of any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact contained
in any Remarketing Memorandum or registration statement (as amended), if
applicable, or the omission or alleged omission to state a material fact
therefrom, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Operating Partnership or by the Remarketing
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Operating Partnership and the Remarketing Underwriter
agree that it would not be just and equitable if contribution pursuant to this
Section 10 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 10. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to
above in this Section 10 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any applicable untrue or alleged untrue statement or omission or
alleged omission.
Notwithstanding the provisions of this Section 10, the
Remarketing Underwriter gent shall not be required to contribute any amount in
excess of the amount by which the total price at which the Notes remarketed by
it and resold to the public were sold to the public exceeds the amount of any
damages which the Remarketing Underwriter has otherwise been required to pay by
reason of any act or failure to act for which it is responsible hereunder or any
untrue or alleged untrue statement or omission or alleged omission.
- 17 -
<PAGE> 18
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 10, each person, if any, who
controls the Remarketing Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Remarketing Underwriter, and each person, if any, who
controls the Operating Partnership within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Operating Partnership.
Section 11. Termination of this Remarketing Agreement. Subject
to Section 3 hereof relating to the payment of fees and expenses, this Agreement
(i) shall terminate as to the Rate Agent on the effective date of the removal of
such Rate Agent pursuant to Section 4 hereof, and (ii) shall terminate as to the
Remarketing Underwriter on the effective date of the removal of such Remarketing
Underwriter pursuant to Section 4 hereof.
Section 12. Rate Agent's and Remarketing Underwriter's
Performance; Duty of Care. The duties and obligations of the Rate Agent and
Remarketing Underwriter hereunder shall be determined solely by the express
provisions of this Remarketing Agreement and the Notes and the Indenture and, in
the case of the Remarketing Underwriter, the applicable Remarketing Underwriting
Agreement.
Section 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE.
Section 14. Term of Agreement. Unless otherwise terminated in
accordance with the provisions hereof, this Agreement shall remain in full force
and effect from the date hereof until the first day thereafter on which no Notes
are outstanding.
Section 15. Successors and Assigns. The rights and obligations
of the Operating Partnership hereunder may not be assigned or delegated to any
other person without the prior written consent of Merrill Lynch. The rights and
obligations of Merrill Lynch hereunder may not be assigned or delegated to any
other person without the prior written consent of the Operating Partnership.
This Agreement shall inure to the benefit of and be binding upon the Operating
Partnership and Merrill Lynch and their respective successors and assigns. The
terms "successors" and "assigns" shall not include any purchaser of any Notes
merely because of such purchase.
Section 16. Headings. Section headings have been inserted in
this Agreement as a matter of convenience of reference only, and it is agreed
that such section headings are not a part of this Agreement and will not be used
in the interpretation of any provisions of this Agreement.
Section 17. Severability. If any provision of this Agreement
shall be held or deemed to be or shall, in fact, be invalid, inoperative or
unenforceable as applied in any particular case in any or all jurisdictions
because it conflicts with any provision of any
- 18 -
<PAGE> 19
constitution, statute, rule or public policy or for any other reason, such
circumstances shall not have the effect of rendering the provision in question
invalid, inoperative or unenforceable in any other case, circumstances or
jurisdiction, or of rendering any other provision or provisions of this
Agreement invalid, inoperative or unenforceable to any extent whatsoever.
Section 18. Counterparts. This Agreement may be executed in
several counterparts, each of which shall be regarded as an original and all of
which shall constitute one and the same document.
Section 19. Amendments. This Agreement may be amended by
any instrument in writing signed by each of the parties hereto.
Section 20. Notices. Unless otherwise specified, any notices,
requests, consents or other communications given or made hereunder or pursuant
hereto shall be made in writing or transmitted by any standard form of
telecommunication or by telephone and confirmed in writing. All written notices
shall be deemed to be validly given or made, if delivered by hand, when so
delivered, or if mailed, when mailed registered or certified mail, return
receipt requested and postage prepaid. All notices by telecommunication
(including telephone) shall be deemed to be validly given or made when received.
All such notices, requests, consents or other communications shall be addressed
as follows: if to the Operating Partnership, to Post Apartment Homes, L.P., 3350
Cumberland Circle, N.W., Suite 2000, Atlanta, Georgia 30339, Attention: John T.
Glover, President; and if to Merrill Lynch, to Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Merrill Lynch World Headquarters, World Financial Center,
North Tower, New York, New York 10281-1209, Attention: Debt Syndicate, or to
such other address as either of the above shall specify to the other in writing.
Section 21. Benefit. Nothing in this Agreement, express or
implied, is intended or shall be construed to confer upon or given any person
other than the parties hereto any remedy or claim under or by reason of this
Agreement or any term, covenant or condition hereof, all of which shall be for
the sole and exclusive benefit of the parties.
- 19 -
<PAGE> 20
IN WITNESS WHEREOF, each of the Operating Partnership and
Merrill Lynch has caused this Agreement to be executed in its name and on its
behalf by one of its duly authorized officers as of the date first above
written.
POST APARTMENT HOMES, L.P.
By: Post GP Holdings, Inc., it general partner
By:
--------------------------------------
Name:
Title:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
---------------------------------------------
Name:
Title:
- 20 -
<PAGE> 1
EXHIBIT 4(c)
REMARKETING UNDERWRITING AGREEMENT
REMARKETING UNDERWRITING AGREEMENT, dated as of , (this
"Agreement") by and between Post Apartment Homes, L.P. (the "Operating
Partnership") and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the "Remarketing Underwriter"). The Remarketing Underwriter hereby
agrees to purchase the Notes described below (the "Notes") that have been
tendered by the holders thereof for sale on _________________ (the "Tender
Date").
IF NO NEW REGISTRATION STATEMENT OR PROSPECTUS IS REQUIRED,
INCLUDE THE FOLLOWING: [It is acknowledged and agreed that the Notes need not be
further registered under the Securities Act of 1933, as amended (the "1933
Act"), and that, in connection with the remarketing of the Notes by the
Remarketing Underwriter in accordance with the terms of the Remarketing
Agreement dated April 8, 1998, no prospectus meeting the requirements of Section
10 of the 1933 Act need be delivered or filed pursuant to Rule 424 under the
1933 Act.
It is understood that the Remarketing Underwriter will deliver
to purchasers and prospective purchasers, in connection with the remarketing,
one or more forms of written communication describing the terms of the Notes
(each, a "Remarketing Memorandum"), the form of each of which shall be delivered
to Post Apartment Homes, L.P. (the "Operating Partnership") not less than two
Business Days prior to its use. Such Remarketing Memorandum shall be subject to
the approval of the Operating Partnership prior to its use by the Remarketing
Underwriter, which approval shall not be unreasonably withheld or delayed.
The Remarketing Underwriter shall offer to purchase Notes and
shall purchase validly tendered Notes on the Tender Date in accordance with all
applicable laws and regulations and interpretations of the Securities and
Exchange Commission.
The following hereby are incorporated into this Agreement in
their entirety and made applicable to the obligations of the Remarketing
Underwriter to the extent applicable to any remarketing of the Notes, except as
explicitly amended hereby:
(A) Section 4(k) of the attached Distribution Agreement (which
dates referred to therein shall be the date of the Remarketing Underwriting
Agreement and the Representation Date for the relevant Tender Date);
(B) Sections 6(a) and (e) of the attached Distribution
Agreement;
(C) The representations and warranties made pursuant to the
above-referenced Remarketing Agreement (other than paragraphs 7(l) and 7(m));
(D) Section 11 of the attached Distribution Agreement; and
(E) Section 12 of the attached Distribution Agreement (except
that Section 12 is amended to allow for the termination of this Agreement by the
Remarketing Underwriter if (i) the Operating Partnership's representations and
warranties therein are not accurate and correct and (ii) the Remarketing
Underwriter does not purchase all tendered Notes on the relevant Tender Date).
All references contained in the attached Distribution Agreement to the "Agent"
or "Agents" shall be deemed to refer to the Remarketing Underwriter. All
references to the "Notes"
- 1 -
<PAGE> 2
shall be deemed to refer to the Notes described below. All references to the
"Representation Date" shall be deemed to refer to the Tender Date. The terms
"Registration Statement" and "Prospectus" shall be deemed to refer to each such
document as amended or supplemented to the date hereof and the Tender Date,
including the documents included in or incorporated by reference into such
document.]
If a New Registration Statement or Prospectus is required,
include the following: [It is understood that a new registration statement or
new prospectus is being filed by the Operating Partnership in connection with
the remarketing of the Notes (the "New Registration Statement" and/or New
Prospectus"). In connection therewith and with the remarketing of the Notes,
the attached Distribution Agreement hereby is incorporated into this Agreement
in its entirety (except as modified below) and the Remarketing Underwriter shall
be deemed to be acting as "principal" thereunder. All references in such
Distribution Agreement to (i) the "Agent" or "Agents" shall be deemed to refer
to the Remarketing Underwriter, (ii) the Distribution Agreement shall be deemed
to refer to the Remarketing Underwriting Agreement and (iii) the "Settlement
Date" or the "Representation Date" shall be deemed to refer to the Tender Date.
To the extent the provisions of such Distribution Agreement refer to the
"Prospectus" or the "Registration Statement," such references shall be deemed to
refer to the New Registration Statement or the New Prospectus, as applicable,
including all documents incorporated by reference therein. For the purposes of
Section 10 of the attached Distribution Agreement, the relative benefit received
by the Operating Partnership, on the one hand, and the Remarketing Underwriter,
on the other hand in connection with the remarketing of the Notes pursuant to
this Agreement shall be deemed to be in the same respective proportions as the
aggregate public offering price of the Notes sold in connection with the
remarketing bears to the remarketing fee received by the Remarketing Underwriter
pursuant to this Agreement. Section 12 of the attached Distribution Agreement
shall be amended to allow for the termination of this Agreement by the
Remarketing Underwriter if (i) the Operating Partnership's representations and
warranties therein are not accurate and correct in all material respects or (ii)
the Remarketing Underwriter does not purchase all tendered Notes on the relevant
Tender Date].
All capitalized terms not otherwise defined in this Agreement
have the respective meanings assigned thereto in the Notes, the form of which is
attached hereto.
<TABLE>
<S> <C>
Operating Partnership: Post Apartment Homes, L.P.
3350 Cumberland Circle, N.W.
Suite 2200
Atlanta, Georgia 30339
</TABLE>
2
<PAGE> 3
<TABLE>
<S> <C>
Remarketing Underwriter and Address: Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters World Financial
Center, North Tower 26th Floor
New York, New York 10281-1209
Title of Notes: Remarketed Reset Notes Due April 7, 2009
Principal Amount of Notes to be Purchased:
Title of Indenture: Indenture dated as of September 25, 1996, by and
between the Operating Partnership and the Trustee
Trustee: SunTrust Bank, Atlanta
Current Ratings: Moody's Investors Service, Inc.: Baa1 Standard &
Poor's Ratings Services: BBB+
CERTAIN TERMS OF THE NOTES
Stated Maturity: April 7, 2009
Spread Determination Date:
Duration/Mode Determination Date:
Tender Notice Date:
Interest Reset Date:
Tender Date:
New Interest Rate: As determined by application of the provisions set
forth in the attached form of the Notes on the
LIBOR Determination Date or the Fixed Rate
Determination Date, as applicable.
Spread:
Interest Payment Dates:
</TABLE>
3
<PAGE> 4
<TABLE>
<S> <C>
Subsequent Spread Period:
Redemption Provisions: Redeemable as set forth in the attached Pricing
Supplement dated March 31, 1998.
Beneficial Owner Tender Provisions: As set forth in the attached Pricing Supplement
dated March 31, 1998. In the event that the
Remarketing Underwriter fails to purchase all Notes
validly tendered for purchase on the Tender Date,
then the Remarketing Underwriter shall promptly
notify the Operating Partnership and the Trustee of
such failure.
Shorter Subsequent Spread Period: In the event that (A) the Remarketing Underwriter
fails to purchase all Notes validly tendered for
purchase on the Tender Date for any reason and
(B) the Operating Partnership has not given notice
of redemption of all of the Notes then outstanding
in accordance with the provisions described in the
attached form of the Notes, then the Subsequent
Spread Period shall be a period of one year, which
Subsequent Spread Period shall be deemed to have
commenced upon the Commencement Date that coincides
with the Tender Date.
Legal Opinion: If required to be delivered pursuant to this
Agreement, the opinion required to be delivered
pursuant to Section 6(b)(iv) of the attached
Distribution Agreement shall be modified to read as
follows "(iv) The Notes have been duly authorized; a
single global Note registered in the name of CEDE &
Co., a nominee of The Depository Trust Company
("DTC"), has been duly authenticated in accordance
with the provisions of the Indenture, paid for and
delivered to DTC, and constitutes a valid and binding
obligation of the Operating Partnership; and the
Underwriter will acquire the rights of a bona fide
purchaser (as such terms are defined
</TABLE>
4
<PAGE> 5
<TABLE>
<S> <C>
in the Uniform Commercial Code as in effect in the State
of New York (the "UCC")) in any portion of the Notes
transferred to the Underwriter by a prior owner
thereof as recorded on the books of DTC, provided
that (i) the portion of the Notes transferred is an
authorized denomination of the Notes, (ii) the
transfer is recorded on the books of DTC by a debit
to the transferor's account with DTC and a credit
to the Underwriter's account with DTC, (iii) the
Underwriter makes payment to such transferor of
value for such transfer and (iv) the Underwriter
purchases such interest in good faith and without
notice of any adverse claim, within the meaning of
the UCC."
If required to be delivered pursuant to this
Remarketing Underwriting Agreement, the opinion
required to be delivered pursuant to Section 6(c) of
the attached Distribution Agreement may be delivered
by any counsel designated by the Remarketing
Underwriter and reasonably acceptable to the
Operating Partnership.
Form of Notes: Global certificate registered in the name of the
nominee, which currently is CEDE & Co., of the
depository of the Notes, which is DTC. The
beneficial owners of the Notes ("Beneficial
Owners") are not entitled to receive definitive
certificates representing their Notes, except under
limited circumstances. A Beneficial Owner's
ownership of a Note currently is recorded on or
through the records of the brokerage firm or other
entity that is a participant in DTC and that
maintains such Beneficial Owner's account.
Purchase Price: 100% of the principal amount of the Notes. Payable
to DTC for the Beneficial Owners of Tendered Notes.
</TABLE>
5
<PAGE> 6
<TABLE>
<S> <C>
Remarketing Fee: 0.075% of the principal amount of the Notes
outstanding on each Tender Date multiplied by the
number of years remaining in the Stated Maturity,
not to exceed 0.65% for any one additional Spread
Period.
Closing: Hogan & Hartson L.L.P., 555 13th Street, N.W.,
Washington, D.C. 20004, at 9:00 a.m., New York
City time, on the Tender Date.
</TABLE>
6
<PAGE> 7
The foregoing terms are hereby confirmed and agreed to as of
this ___ day of ____________.
POST APARTMENT HOMES, L.P.
By: POST GP HOLDINGS, INC.,
its general partner
By:
---------------------------------------
Name:
Title:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
----------------------------------------------
Name:
Title:
7
<PAGE> 1
[LETTERHEAD OF KING & SPALDING]
EXHIBIT 8
April 8, 1998
Post Apartment Homes, L.P.
3350 Cumberland Circle
Suite 2200
Atlanta, Georgia 30339
Re: Post Apartment Homes, L.P. -- $50,000,000 In Aggregate
Principal Amount Of Remarketed Reset Notes
Ladies and Gentlemen:
We have acted as counsel to Post Apartment Homes, L.P. (the "Operating
Partnership") in connection with the registration under the Securities Act of
1933, as amended, of $50,000,000 in aggregate principal amount of Remarketed
Reset Notes offered by the Operating Partnership (the "Notes") pursuant to a
Pricing Supplement dated March 31, 1998 (the "Notes Pricing Supplement"). You
have requested our opinion as to the accuracy of the information contained in
the Notes Pricing 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 Pricing 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 Operating
Partnership.
<PAGE> 2
Post Apartment Homes, L.P.
April 8, 1998
Page 2
Based upon and subject to the foregoing, we are of the opinion that
the information in the Notes Pricing Supplement under the heading "Certain
United States Federal Income Tax Considerations" constitutes, in all material
respects, a fair and accurate summary of the material 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 of 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. We hereby consent to
the filing of this opinion by the Operating Partnership with the Securities and
Exchange Commission.
Very truly yours,
KING & SPALDING
