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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) March 11, 1998
POST APARTMENT HOMES, L.P.
---------------------------------------------------------
(Exact name of registrant as specified in its charter)
Georgia 0-28226 58-2053632
- ------------------- ----------------------- --------------------
(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification No.)
incorporation)
3350 Cumberland Circle, Atlanta, Georgia 30339
- ------------------------------------------ ------------------
(Address of principal executive offices) (Zip Code)
(770) 850-4400
--------------------------
(Registrant's telephone number, including area code)
This document consists of 22 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 $100,000,000 6.85% MandatOry Par Put Remarketed Securities
("MOPPRS"). 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.
Exhibit No. Description
4 -- Form of Note for the 6.85% MandatOry Par Put Remarketed Securities
8 -- Opinion of King & Spalding relating to certain tax matters
23 -- Consent of King & Spalding (included in Exhibit 8)
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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)
Date: March 13, 1998 By: /s/ John T. Glover
--------------------------------------
John T. Glover
President
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Page
- ----------- ----------- ----
<S> <C> <C>
4 -- Form of Note for the 6.85% MandatOry Par Put Remarketed
Securities
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
UNLESS THIS MOPPRS 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 MOPPRS 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 MOPPRS IN CERTIFICATED
FORM, THIS MOPPRS 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: $100,000,000
CUSIP No.:
POST APARTMENT HOMES, L.P.
MEDIUM-TERM NOTE
6.85% MandatOry Par Put Remarketed Securities(SM) ("MOPPRS(SM)") due
March 16, 2015
ORIGINAL ISSUE DATE: INTEREST RATE STATED MATURITY DATE:
March 16, 1998 TO REMARKETING March 16, 2015
DATE: 6.85%
REMARKETING DATE: INTEREST RATE
March 16, 2005 TO MATURITY: To be determined as provided
herein and set forth in the
records of the Trustee
AUTHORIZED DENOMINATION: INTEREST PAYMENT DATE(S):
$1,000 and integral multiples thereof March 16 and September 16
________________________________
"MandatOry Par Put Remarketed Securities(SM)" and "MOPPRS(SM)" are service
marks owned by Merrill Lynch & Co., Inc. BWNY04/140323
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POST APARTMENT HOMES, L.P., a Georgia limited partnership (the
"Operating Partnership"), which term includes any successor under the Indenture
hereinafter referred to, for value received, hereby promises to pay to Cede &
Co., a nominee of The Depository Trust Company ("DTC"), or its registered
assigns, the principal amount of One Hundred Million Dollars ($100,000,000), on
the Stated Maturity Date specified above (or any earlier redemption date or
repurchase date) (each such Stated Maturity Date, redemption date or repurchase
date being hereinafter referred to as the "Maturity Date" with respect to the
principal repayable on such date) and to pay interest thereon, at the Interest
Rate per annum specified above to March 16, 2005 (the "Remarketing Date"), and
thereafter, subject to the terms and conditions set forth herein, at the
Interest Rate determined by the Remarketing Dealer (as defined below) in
accordance with the procedures set forth below (the "Interest Rate to
Maturity"), until the principal hereof is paid or duly made available for
payment. The Operating Partnership will pay interest in arrears on each
Interest Payment Date, if any, specified above (each, an "Interest Payment
Date"), commencing with the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Maturity Date; provided,
however, that if the Original Issue Date occurs between a Record Date (as
defined below) and the related Interest Payment Date, interest payments will
commence on the Interest Payment Date immediately following the next succeeding
Record Date to the holder of this Note on such next succeeding Record Date.
Interest on this MOPPRS will be computed on the basis of a 360-day year of
twelve 30-day months.
If, pursuant to the Remarketing Agreement, dated as of the date hereof
(the "Remarketing Agreement"), between Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as Remarketing Dealer (the "Remarketing Dealer"), and the
Operating Partnership, the Remarketing Dealer elects to remarket the MOPPRS,
then, except as otherwise set forth herein, (i) this MOPPRS shall be subject to
mandatory tender to the Remarketing Dealer for remarketing on the Remarketing
Date, on the terms and subject to the conditions set forth herein, and (ii) on
and after the Remarketing Date, this MOPPRS shall bear interest at the Interest
Rate to Maturity determined by the Remarketing Dealer in accordance with the
procedures set forth in Section 3 herein. The Remarketing Dealer's duties set
forth herein shall be performed pursuant to the Remarketing Agreement.
Interest on this MOPPRS will accrue from, and including, the
immediately preceding Interest Payment Date to which interest has been paid or
duly provided for (or from, and including, the Original Issue Date, if no
interest has been paid or duly provided for) to, but excluding, the applicable
Interest Payment Date or the Maturity Date, as the case may be. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, subject to certain exceptions described herein, be paid to the
person in whose name this MOPPRS (or one or more predecessor MOPPRS) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined below) immediately preceding such Interest
Payment Date (the "Record Date"). Any such interest not so punctually paid or
duly provided for ("Defaulted Interest") will forthwith cease to be payable to
the Holder on any Record Date, and shall be paid to the person in whose name
this MOPPRS is registered at the close of business on a special record date
(the "Special Record Date") for the payment of such
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Defaulted Interest to be fixed by the Trustee hereinafter referred to, notice
whereof shall be given to the Holder of this MOPPRS by the Trustee not less
than 10 calendar days prior to such Special Record Date or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which this MOPPRS may be listed, and upon such notice as
may be required by such exchange, all as more fully provided for in the
Indenture.
Principal of, premium, if any, and interest, if any, on this MOPPRS
will be payable when due upon presentation and surrender of this MOPPRS at the
corporate trust office of the Trustee maintained for that purpose 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,
or at such other paying agency in the Borough of Manhattan, The City of New
York, as the Operating Partnership may determine. Payment of interest due on
any Interest Payment Date will be made by check mailed to the address of the
person entitled thereto as such address shall appear in the Security Register
maintained at the aforementioned office of the Trustee; provided, however, that
a holder of U.S. $10,000,000 or more in aggregate principal amount of MOPPRS
will be entitled to receive interest payments on such Interest Payment Date by
wire transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee not less than 15
calendar days prior to such Interest Payment Date. Any such wire transfer
instructions received by the Trustee shall remain in effect until revoked by
such holder. Notwithstanding the foregoing or any provision hereof, if this
MOPPRS is a global Security (as evidenced by the legend first set forth above
and provided in the Indenture), and is held in book-entry form through the
facilities of DTC, payments on this MOPPRS will be made to DTC or its nominee
in accordance with the arrangements then in effect between the Trustee and DTC.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any,
and/or interest, shall be made on the next succeeding Business Day with the
same force and effect as if it were made on the date such payment was due, and
no interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date or the Maturity Date, as the case may be, to the
date of payment on the next succeeding Business Day.
As used herein, "Business Day" means any day other than a Saturday,
Sunday or a day on which banking institutions in The City of New York are
authorized or obligated by law, executive order or governmental decree to be
closed.
The Operating Partnership is obligated to make payment of principal,
premium, if any, and interest in respect of this MOPPRS in United States
dollars.
Reference is hereby made to the further provisions of this MOPPRS set
forth following the Trustee's Certificate of Authentication (the "Certificate
of Authentication") set forth below.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this MOPPRS shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, POST APARTMENT HOMES, L.P. has caused this MOPPRS
to be duly executed.
POST APARTMENT HOMES, L.P.
as Issuer
By: Post GP Holdings, Inc., its general partner
By:
------------------------------------------
Name: John T. Glover
Title: President and Chief Operating Officer
Attest:
- --------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
Dated: March 16, 1998 SUNTRUST BANK, ATLANTA,
as Trustee
By:
_________________________________
Authorized Signatory
4
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POST APARTMENT HOMES, L.P.
6.85% MandatOry Par Put Remarketed Securities(SM) ("MOPPRS(SM)") due
March 16, 2015
1. Indenture. (a) This MOPPRS is one of a duly authorized series
of Securities of the Operating Partnership issued under an Indenture, dated as
of September 25, 1996 (as amended, modified or supplemented from time to time,
the "Indenture"), between the Operating Partnership 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 Operating Partnership, the
Trustee and the Holders of the MOPPRS, and of the terms upon which the MOPPRS
are authenticated and delivered. This Security is designated as "6.85%
MandatOry Par Put Remarketed SecuritiesSM due March 16, 2015" ("MOPPRS(SM)"),
which MOPPRS are limited to $100,000,000 aggregate principal amount, of the
series designated "Medium-Term Notes Due Nine Months or More From Date of
Issue" of the Operating Partnership, subject to the provisions of the
Indenture. All terms used but not defined in this MOPPRS shall have the
meanings assigned to such terms in the Indenture. Except where the context
otherwise requires, all references in this MOPPRS to "this MOPPRS," "this
Security," "herein" or "hereof" or similar terms shall include the Indenture.
(b) This MOPPRS is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof.
(c) This MOPPRS will not be subject to any sinking fund.
2. Mandatory Tender. Provided that on a Business Day not later
than five Business Days prior to the Remarketing Date the Remarketing Dealer
notifies the Operating Partnership and the Trustee of its election to purchase
the MOPPRS on the Remarketing Date for remarketing (the "Notification Date"),
the MOPPRS shall be subject to mandatory tender to the Remarketing Dealer, and
the Remarketing Dealer shall be obligated to purchase the MOPPRS, for
remarketing on the Remarketing Date, subject in each case to the conditions
described herein and set forth in the Remarketing Agreement. The purchase price
for the tendered MOPPRS shall equal 100% of the principal amount thereof. From
and after the Remarketing Date, the MOPPRS shall bear interest at the Interest
Rate to Maturity determined pursuant to Section 3 hereof. If the Remarketing
Dealer elects to remarket the MOPPRS, the obligation of the Remarketing Dealer
to purchase the MOPPRS on the Remarketing Date is subject to the conditions
specified in Section 8 of the Remarketing Agreement. If the Remarketing Dealer
purchases MOPPRS on the Remarketing Date, it must purchase all of the MOPPRS.
If for any reason the Remarketing Dealer does not purchase all of the MOPPRS on
the Remarketing Date, the Operating Partnership shall be required to repurchase
from the Beneficial Owners thereof, and the Beneficial Owners will be required
to sell to the Operating Partnership, all the MOPPRS at a price equal to the
principal amount thereof plus all accrued and unpaid interest, if any, on the
MOPPRS to the Remarketing Date as provided in Section 4 hereof.
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"Beneficial Owner" shall mean each person who acquires an interest in
the MOPPRS which is reflected on the records of the DTC through its
participants.
3. Determination of Interest Rate to Maturity. (a) Subject to
the Remarketing Dealer's election to remarket the MOPPRS as provided in Section
2 hereof and subject further to Sections 3(c) and 5 hereof and the Remarketing
Agreement, the Interest Rate to Maturity shall be determined by the Remarketing
Dealer no later than 3:30 p.m., New York City time, on and as of the third
Business Day immediately preceding the Remarketing Date (the "Determination
Date") to the nearest one hundred-thousandth (0.00001) of one percent per
annum, and will be equal to the sum of 5.715% (the "Base Rate") plus the
Applicable Spread, which will be based on the Dollar Price of the MOPPRS. The
Interest Rate to Maturity announced by the Remarketing Dealer, absent manifest
error, shall be binding and conclusive upon the Beneficial Owners and Holders
of the MOPPRS, the Operating Partnership and the Trustee.
The "Applicable Spread" will be the lowest bid indication, expressed
as a spread (in the form of a percentage or in basis points) above the Base
Rate, obtained by the Remarketing Dealer on the Determination Date from the
bids quoted by five Reference Corporate Dealers for the full aggregate
principal amount of the MOPPRS at the Dollar Price, but assuming (i) an issue
date equal to the Remarketing Date, with settlement on such date without
accrued interest, (ii) a maturity date equal to the Stated Maturity Date of the
MOPPRS, and (iii) a stated annual interest rate, payable semiannually on each
Interest Payment Date, equal to the Base Rate plus the spread bid by the
applicable Reference Corporate Dealer. If fewer than five Reference Corporate
Dealers bid as described above, then the Applicable Spread shall be the lowest
of such bid indications obtained as described above; provided, however, that,
if fewer than three Reference Corporate Dealers bid as described above by 3:00
p.m., New York City time, on the Determination Date, the Remarketing Dealer
shall notify the Operating Partnership thereof by telephone (which notification
shall indicate only the number of bids received), prior to determination by the
Remarketing Dealer of the Interest Rate to Maturity, whereupon the MOPPRS shall
be subject to redemption at the option of the Operating Partnership as provided
in Section 5 below.
In the event that the Operating Partnership fails to elect, or elects
not, to redeem the MOPPRS prior to the determination of the Interest Rate to
Maturity by the Remarketing Dealer not later than 3:30 p.m., New York City
time, on the Determination Date pursuant to Section 5 hereof, the Applicable
Spread shall be the lowest of the bid indications obtained by the Remarketing
Dealer from such Reference Corporate Dealers.
"Dollar Price" means, with respect to the MOPPRS, the present value as
determined by the Remarketing Dealer, as of the Remarketing Date, of the
Remaining Scheduled Payments discounted to the Remarketing Date, on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months),
at the Treasury Rate.
"Reference Corporate Dealers" mean leading dealers of publicly traded
debt securities of the Operating Partnership in The City of New York (one of
which may be the Remarketing Dealer or one of its affiliates) selected by the
Remarketing Dealer.
"Treasury Rate" means, with respect to the Remarketing Date, the rate
per annum equal to the semiannual equivalent yield to maturity or interpolated
(on a day count basis) yield to maturity of the Comparable Treasury Issues,
assuming a price for the Comparable Treasury Issues (expressed as a percentage
of its principal amount), equal to the Comparable Treasury Price for the
Remarketing Date.
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"Comparable Treasury Issues" means the United States Treasury security
or securities selected by the Remarketing Dealer as having an actual or
interpolated maturity or maturities comparable to the remaining term of the
MOPPRS being purchased.
"Comparable Treasury Price" means, with respect to the Remarketing
Date, (a) the offer prices for the Comparable Treasury Issues (expressed in
each case as a percentage of its principal amount) on the Determination Date,
as set forth on "Telerate Page 500" (or such other page as may replace Telerate
Page 500), or (b) if such page (or any successor page) is not displayed or does
not contain such offer prices on the Determination Date, (i) the average of the
Reference Treasury Dealer Quotations for the Remarketing Date, after excluding
the highest and lowest such Reference Treasury Dealer Quotations, or (ii) if
the Remarketing Dealer obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Reference Treasury Dealer Quotations.
"Telerate Page 500" means the display designated as "Telerate Page 500" on Dow
Jones Markets Limited (or such other page as may replace Telerate Page 500 on
such service) or such other service displaying the offer prices specified in
(a) above as may replace Dow Jones Markets Limited.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and the Remarketing Date, the offer prices for the
Comparable Treasury Issues (expressed in each case as a percentage of its
principal amount) quoted to the Remarketing Dealer by such Reference Treasury
Dealer by 3:30 p.m., New York City time, on the Determination Date.
"Reference Treasury Dealer" means each of Credit Suisse First Boston
Corporation, Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated and Salomon Brothers Inc and
their respective successors; provided, however, that if any of the foregoing or
their affiliates shall cease to be a primary U.S. Government securities dealer
in The City of New York (a "Primary Treasury Dealer"), the Remarketing Dealer
shall substitute therefor another Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to the MOPPRS, the
remaining scheduled payments of the principal thereof and interest thereon,
calculated at the Base Rate only, that would be due after the Remarketing Date
to and including the Stated Maturity Date, as determined by the Remarketing
Dealer; provided, however, that if the Remarketing Date is not an Interest
Payment Date with respect to the MOPPRS, the amount of the next succeeding
scheduled interest payment thereon, calculated at the Base Rate only, will be
reduced by the amount of interest accrued thereon, calculated at the Base Rate
only, to the Remarketing Date.
(b) Provided the Remarketing Dealer has previously notified the
Operating Partnership and the Trustee on the Notification Date of its intention
to purchase all MOPPRS on the Remarketing Date and subject to Section 5 below,
the Remarketing Dealer will notify the Operating Partnership, the Trustee and
DTC by telephone, confirmed in writing (which may include facsimile or other
electronic transmission), by 4:00 p.m., New York City time, on the
Determination Date, of the Interest Rate to Maturity. All of the tendered
MOPPRS shall be
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automatically delivered to the account of the Trustee, by book-entry through
DTC pending payment of the purchase price therefor, on the Remarketing Date.
In the event that the Remarketing Dealer purchases the tendered MOPPRS
on the Remarketing Date, the Remarketing Dealer shall make or cause the Trustee
to make payment to the DTC Participant of each Beneficial Owner of MOPPRS, by
book-entry through DTC no later than the close of business on the Remarketing
Date against delivery through DTC of such Beneficial Owner's tendered MOPPRS,
of 100% of the principal amount of the tendered MOPPRS that have been purchased
for remarketing by the Remarketing Dealer. If the Remarketing Dealer does not
purchase all of the MOPPRS on the Remarketing Date, it shall be the obligation
of the Operating Partnership to make or cause to be made such payment for the
MOPPRS, as provided in Section 4 hereof. In any case, the Operating
Partnership shall make or cause the Trustee to make payment of interest to each
Beneficial Owner of MOPPRS due on the Remarketing Date by book-entry through
DTC no later than the close of business on the Remarketing Date.
"DTC Participant" shall mean any person that has an account with DTC
through which Beneficial Owners acquire, directly or indirectly, an interest in
the MOPPRS.
The transactions set forth in this Section shall be executed on the
Remarketing Date through DTC in accordance with the procedures of DTC, and the
accounts of the respective DTC Participants will be debited and credited and
the MOPPRS delivered by book-entry as necessary to effect the purchases and
sales thereof.
The tender and settlement procedures set forth above, including
provisions for payment by purchasers of MOPPRS in the remarketing or for
payment to selling Beneficial Owners of MOPPRS, may be modified to the extent
required by DTC or to the extent required to facilitate the tender and
remarketing of MOPPRS in certificated form, if the book-entry system is no
longer available for the MOPPRS at the time of the remarketing. In addition,
the Remarketing Dealer may, without the consent of Holders or Beneficial Owners
of the MOPPRS, modify the tender and settlement procedures set forth above in
order to facilitate the tender and settlement process.
As long as DTC's nominee holds the certificates representing any
MOPPRS in the book-entry system of DTC, no certificates for such MOPPRS will be
delivered by any selling Beneficial Owner to reflect any transfer of such
MOPPRS effected in the remarketing.
(c) Notwithstanding any provision herein to the contrary, upon the
occurrence, at any time after determination of the Interest Rate to Maturity on
the Determination Date and prior to 3:30 p.m., New York City time, on the
Business Day immediately preceding the Remarketing Date, of any event as
specified in Section 11(b) of the Remarketing Agreement, the Remarketing
Dealer, in its sole discretion at any time between the Determination Date and
3:30 p.m., New York City time, on the Business Day immediately preceding the
Remarketing Date, may elect to purchase the MOPPRS for remarketing and
determine a new Interest Rate to Maturity in the
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manner provided in Section 3(a) hereof, except that for purposes of determining
the new Interest Rate to Maturity pursuant to this paragraph, the Determination
Date referred to therein shall be the date of such election and
redetermination. The Remarketing Dealer shall notify the Operating Partnership,
the Trustee and DTC by telephone, confirmed in writing (which may include
facsimile or other electronic transmission), by 4:00 p.m., New York City time,
on the date of such election, of the new Interest Rate to Maturity applicable
to the MOPPRS. Thereupon, such new Interest Rate to Maturity shall supersede
and replace any Interest Rate to Maturity previously determined by the
Remarketing Dealer and, absent manifest error, shall be binding and conclusive
upon the Beneficial Owners and Holders of the MOPPRS on or after the
Remarketing Date, the Operating Partnership and the Trustee.
4. Repurchase. In the event that (i) the Remarketing Dealer for
any (other than redemption by the Operating Partnership of the MOPPRS from the
Remarketing Dealer pursuant to Section 5 hereof) reason does not notify the
Operating Partnership of the Interest Rate to Maturity by 4:00 p.m., New York
City time, on the Determination Date, or (ii) prior to the Remarketing Date, the
Remarketing Dealer has resigned and no successor has been appointed on or before
the Determination Date, or (iii) at any time after the Remarketing Dealer elects
on the Notification Date to remarket the MOPPRS, any event as set forth in
Section 8 or Section 11 of the Remarketing Agreement shall have occurred, or
(iv) the Remarketing Dealer for any reason does not elect to purchase the MOPPRS
for remarketing on the Remarketing Date, or (v) the Remarketing Dealer for any
reason does not purchase all tendered MOPPRS on the Remarketing Date, the
Operating Partnership shall repurchase all the MOPPRS as a whole on the
Remarketing Date at a price equal to 100% of the principal amount of the MOPPRS
plus all accrued and unpaid interest, if any, on the MOPPRS to the Remarketing
Date. In any such case, payment will be made by the Operating Partnership
through the Trustee to the DTC Participant of each tendering Beneficial Owner of
MOPPRS, by book-entry through DTC no later than the close of business on the
Remarketing Date against delivery through DTC of such Beneficial Owner's
tendered MOPPRS.
5. Redemption. If the Remarketing Dealer elects to remarket the
MOPPRS on the Remarketing Date, then (i) not later than the Business Day
immediately preceding the Determination Date or (ii) if fewer than three
Reference Corporate Dealers submit firm bids to the Remarketing Dealer by 3:00
p.m., New York City time, on the Determination Date, immediately upon receiving
notification thereof by telephone (which notification shall indicate only the
number of bids received) and in any event prior to determination by the
Remarketing Dealer of the Interest Rate to Maturity by not later than 3:30 p.m.,
New York City time, on the Determination Date, in either case, the MOPPRS shall
be subject to redemption at the option of the Operating Partnership from the
Remarketing Dealer, as a whole but not in part, as set forth in this Section.
The Operating Partnership shall notify the Remarketing Dealer and the Trustee,
as to whether the Operating Partnership irrevocably elects to exercise its right
to redeem the MOPPRS, in whole but not in part, from the Remarketing Dealer on
the Remarketing Date at the Optional Redemption Price. If the Operating
Partnership so elects, it shall redeem the MOPPRS by payment to the Remarketing
Dealer as provided in the Remarketing Agreement. If the Operating Partnership
fails to elect, or elects not, to redeem the MOPPRS pursuant to this Section 5,
the Remarketing Dealer will determine the Interest Rate to Maturity on the
Determination Date as provided in Section 3(a) hereof. The Operating
Partnership's right to redeem the MOPPRS pursuant to clause (ii) above of this
Section 5 (if applicable) may be exercised only on the initial Determination
Date and not on any subsequent Determination Date contemplated in Section 3(c)
hereof.
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The "Optional Redemption Price" shall be the greater of (i) 100% of
the principal amount of the MOPPRS and (ii) the sum of the present values of
the Remaining Scheduled Payments thereon, as determined by the Remarketing
Dealer, discounted to the Remarketing Date on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate, plus in
either case accrued and unpaid interest from the Remarketing Date on the
principal amount being redeemed to the date of redemption. If the Operating
Partnership elects of redeem the MOPPRS, it shall pay the redemption price
therefor in same-day funds by wire transfer to an account designated by the
Remarketing Dealer on the Remarketing Date.
6. Effect of Events of Default. If an Event of Default, as
defined in the Indenture, shall occur and be continuing, the principal of the
MOPPRS may be declared due and payable in the manner and with the effect
provided in the Indenture.
7. Defeasance. Notwithstanding any provision to the contrary in
the Indenture or otherwise, prior to the Remarketing Date, neither the
Operating Partnership nor any of its subsidiaries or affiliates shall defease,
purchase or otherwise acquire, or enter into any agreement to defease, purchase
or otherwise acquire, any of the MOPPRS prior to the remarketing thereof by the
Remarketing Dealer.
8. Maintenance in Book-Entry Form. Notwithstanding any provision
to the contrary set forth in the Indenture, the Operating Partnership (i) shall
use its best efforts to maintain the MOPPRS in book-entry form with DTC or any
successor thereto and to appoint a successor depositary to the extent necessary
to maintain the MOPPRS in book-entry form, and (ii) waives any discretionary
right it otherwise has under the Indenture to cause the MOPPRS to be issued in
certificated form.
9. Amendment and Modification. The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Operating Partnership and the
rights of the Holders of the Securities at any time by the Operating
Partnership 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 Operating Partnership 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 MOPPRS shall be conclusive and binding upon such
Holder and upon all future Holders of this MOPPRS and other MOPPRS 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
MOPPRS. Without the consent of any Holder, (i) the Operating Partnership and
the Trustee may amend or supplement the Indenture or the MOPPRS to cure any
ambiguity, defect or inconsistency or to make certain other specified changes
or any change that does not materially
10
<PAGE> 11
adversely affect the rights of any Holder and (ii) the tender and settlement
procedures may be modified as provided in Section 3(b) above. Holders of
MOPPRS may not enforce their rights pursuant to the Indenture or the MOPPRS
except as permitted in the Indenture.
10. Obligation to Pay Principal, Premium, if any, and Interest.
No reference herein to the Indenture and no provision of this MOPPRS or of the
Indenture shall alter or impair the obligation of the Operating Partnership,
which is absolute and unconditional, to pay principal, premium, if any, and
interest in respect of this MOPPRS at the times, places and rate or formula,
and in the manner and coin or currency, herein prescribed.
11. Transfer and Exchange. As provided in the Indenture and
subject to certain limitations therein and herein set forth (including without
limitation the restrictions on transfer under the Indenture in the event this
MOPPRS is a global Security as evidenced by the legend first set forth above
and provided in the Indenture), the transfer of this MOPPRS is registrable in
the Security Register of the Operating Partnership upon surrender of this
MOPPRS for registration of transfer at the office or agency of the Security
Registrar in The City of New York, New York designated for such purpose, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Operating Partnership and the Security Registrar duly
executed by, the Holder hereof or by his attorney duly authorized in writing,
and thereupon one or more new MOPPRS, of authorized denominations and for the
same aggregate principal amount and otherwise bearing identical terms and
provisions, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein and herein set forth (including without limitation the restrictions on
transfer under the Indenture in the event this MOPPRS is a global Security as
evidenced by the legend first set forth above and provided in the Indenture),
this MOPPRS is exchangeable for a like aggregate principal amount of MOPPRS of
different authorized denominations but otherwise having the same terms and
conditions, as requested by the Holder hereof surrendering the same at the
office or agency of the Security Registrar in The City of New York, New York
designated for such purpose.
No service charge shall be made for any such registration of transfer
or exchange of MOPPRS, but the Operating Partnership or the Security Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto. Initially, the Trustee will act
as Security Registrar and the office at which this MOPPRS must be surrendered
for registration of transfer or exchange is currently the corporate trust
department of the Trustee, c/o First National Bank of Chicago, 14 Wall Street,
Suite 4607, New York, New York 10005.
Prior to due presentment of this MOPPRS for registration of transfer,
the Operating Partnership, the Trustee and any agent of the Operating
Partnership or the Trustee may treat the person in whose name this MOPPRS is
registered as the owner thereof for all purposes, whether or not this MOPPRS be
overdue, and neither the Operating Partnership, the Trustee nor any such agent
shall be affected by notice to the contrary.
11
<PAGE> 12
12. Certain Covenants. The Operating Partnership will not, and
will not permit a Subsidiary to, incur any Debt, other than intercompany Debt
(representing Debt to which the only parties are Post Properties, Inc. (the
"Company"), the Operating Partnership and any of their Subsidiaries, but only
so long as such Debt is held solely by any of the Company, the Operating
Partnership 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 Operating Partnership 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 Operating Partnership'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 Operating
Partnership's Total Assets being referred to as the "Adjusted Total Assets").
In addition to the foregoing limitation on the incurrence of Debt, the
Operating Partnership will not, and will not permit any Subsidiary to, incur
any Secured Debt of the Operating Partnership 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 Operating
Partnership and its Subsidiaries on a consolidated basis is greater than 40% of
Adjusted Total Assets. Debt shall be deemed to be "incurred" by the Operating
Partnership and its Subsidiaries on a consolidated basis whenever the Operating
Partnership 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 Operating Partnership 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 Operating Partnership 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 Operating Partnership 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 Operating Partnership 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
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<PAGE> 13
Debt had occurred as of the first day of such period with the appropriate
adjustments to net income and Debt levels with respect to such increase,
decrease or other acquisition or disposition being included in such pro forma
calculation. For purposes of the adjustments referred to in clause (iii) of
the preceding sentence, any income earned (or loss incurred) as a result of any
such increase, decrease or other acquisition or disposition referred to in
clause (iii) for a period less than such four-quarter period shall be
annualized for such four-quarter period.
The Operating Partnership is required to maintain Total Unencumbered
Assets of not less than 150% of the aggregate outstanding principal amount of
the Unsecured Debt of the Operating Partnership.
A breach of any of the foregoing covenants by the Operating
Partnership, and continuance of such breach for a period of 60 days after there
has been given, by registered or certified mail, to the Operating Partnership
by the Trustee or to the Operating Partnership and the Trustee by the Holders
of at least 25% in principal amount of the outstanding MOPPRS 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 Operating
Partnership 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 Operating Partnership 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 Operating Partnership 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 Operating Partnership and its
Subsidiaries for such period determined on a consolidated basis in accordance
with generally accepted accounting principles.
13
<PAGE> 14
"Debt" of the Operating Partnership or any Subsidiary means any
indebtedness of the Operating Partnership 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 Operating Partnership and its Subsidiaries, (iii) the
reimbursement obligations, contingent or otherwise, in connection with any
letters of credit actually issued or amounts representing the balance deferred
and unpaid of the purchase price of any property except any such balance that
constitutes an accrued expense or trade payable or (iv) any lease of property
by the Operating Partnership and its Subsidiaries as lessee which is reflected
in the Operating Partnership'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
Operating Partnership's consolidated balance sheet in accordance with generally
accepted accounting principles, and also includes, to the extent not otherwise
included, any obligation by the Operating Partnership 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 Operating Partnership or any Subsidiary) (it
being understood that Debt shall be deemed to be incurred by the Operating
Partnership and its Subsidiaries on a consolidated basis whenever the Operating
Partnership 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 Operating Partnership 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 Operating Partnership, 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 Operating Partnership.
"Total Assets" as of any date means the sum of (i) Undepreciated Real
Estate Assets and (ii) all other assets of the Operating Partnership and its
Subsidiaries on a consolidated basis
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<PAGE> 15
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 Operating Partnership 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
Operating Partnership and its Subsidiaries on such date, before depreciation
and amortization, determined on a consolidated basis in accordance with
generally accepted accounting principles.
"Unsecured Debt" means Debt of the Operating Partnership or any
Subsidiary that is not Secured Debt.
13. Waiver; Further Covenant. Neither the Company nor any other
partner of the Operating Partnership shall have any obligation or liability for
payment of the MOPPRS, and Holders of the MOPPRS will have no claims or other
recourse against the Company or any other partner of the Operating Partnership,
or against any assets of the Company or any other partner of the Operating
Partnership, in respect of the MOPPRS; and the Holders of the MOPPRS shall not
have any right to enforce any obligation of a partner to make a contribution to
the Operating Partnership under any provision of the Agreement of Limited
Partnership. Neither the Company nor any other partner of the Operating
Partnership 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 MOPPRS or any obligations hereunder; provided, however, that
in the event of a dissolution of the Operating Partnership, any assets of the
Operating Partnership that are received by the Company in such dissolution
shall be subject to the claims of the Holders of the MOPPRS for the enforcement
of payment thereof. The Operating Partnership covenants that the Company shall
not acquire any assets other than interests in the Operating Partnership 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 Operating Partnership without the prior written consent of a majority in
principal amount of all of the outstanding MOPPRS. A breach of the foregoing
covenant by the Operating Partnership, and continuance of such breach for a
period of 60 days after there has been given, by registered or certified mail,
to the Operating Partnership by the Trustee or to the Operating Partnership and
the Trustee by the Holders of at least 25% in principal amount of the
outstanding MOPPRS a written notice as set forth in the Indenture, shall be an
Event of Default under the Indenture.
14. Governing Law. The Indenture and this MOPPRS 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.
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<PAGE> 16
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this MOPPRS, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - Custodian
----------- ------------
(Cust) (minor)
under Uniform Gifts to Minors Act
(State)
------------------------------
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
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 MOPPRS and all
rights thereunder hereby irrevocably constituting and appointing
Attorney to transfer this MOPPRS
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 MOPPRS in every particular,
without alteration or enlargement
or any change whatsoever.
16
<PAGE> 1
EXHIBIT 8
March 12, 1998
Post Apartment Homes, L.P.
3350 Cumberland Circle
Suite 2200
Atlanta, Georgia 30339
Re: Post Apartment Homes, L.P. -- $100,000,000 in aggregate
principal amount of MandatOry Par Put Remarketed Securities
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 $100,000,000 in aggregate principal amount of MandatOry
Par Put Remarketed Securities offered by the Operating Partnership ("MOPPRS")
pursuant to a Pricing Supplement dated March 6, 1998 (the "MOPPRS Pricing
Supplement"). You have requested our opinion as to the accuracy of the
information contained in the MOPPRS 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 MOPPRS 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.
March 12, 1998
Page 2
Based upon and subject to the foregoing, we are of the opinion that
the information in the MOPPRS 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
MOPPRS under current law.
The opinion expressed herein is based upon the Internal Revenue Code
of 1986, as amended, the U.S. Treasury Regulations promulgated thereunder,
current administrative positions of the U.S. Internal Revenue Service, and
existing judicial decisions, any of which could be changed at any time,
possibly on a retroactive basis. Any such changes could adversely affect the
opinion rendered herein and the tax consequences to the Operating Partnership
and the investors in the MOPPRS. 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 MOPPRS. We hereby consent
to the filing of this opinion by the Operating Partnership with the Securities
and Exchange Commission.
Very truly yours,
King & Spalding
