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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): Commission File Number:
December 6, 1996 0-20707
COLONIAL REALTY LIMITED PARTNERSHIP
(Exact name of registrant as specified in its charter)
Delaware 63-1098468
(State or other jurisdiction (IRS Employer
of incorporation) Identification Number)
2101 Sixth Avenue North
Suite 750
Birmingham, Alabama 35202
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(205) 250-8700
(Former name or former address, if changed since last report)
Not applicable
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COLONIAL REALTY LIMITED PARTNERSHIP
Item 5 - Other Events
Attached as Exhibits to this form are the documents listed below:
Exhibit Document
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A Form of Distribution Agreement by and among
Colonial Realty Limited Partnership, Merrill Lynch
& Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Lehman Brothers Inc., and J.P.
Morgan Securities Inc. and UBS Securities LLC,
with the attached Administrative Procedures.
B Form of Officers' Certificate evidencing the terms
of the Fixed Rate Notes and the Floating Rate
Notes to be provided to Bankers Trust Company (the
"Trustee") pursuant to Section 301 of the
Indenture dated July 22, 1996 between Colonial
Realty Limited Partnership and Bankers Trust
Company (the "Indenture"), with the attached Forms
of Note.
C Consolidated and Combined Calculation of Ratio of
Earnings to Fixed Charges for the six months ended
June 30, 1996 and the years ended December 31,
1995, 1994, 1993, 1992 and 1991 for Colonial
Realty Limited Partnership and Predecessor
Business (amending and superseding Exhibit 12 to
Registration Statement No. 333-14401).
-2-
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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 hereunto duly authorized.
COLONIAL REALTY LIMITED
PARTNERSHIP
By: Colonial Properties Holding
Company, Inc., its general partner
Date: December 6, 1996 By: /s/ Douglas B. Nunnelley
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Douglas B. Nunnelley
Senior Vice President and Chief
Financial Officer
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EXHIBIT INDEX
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Exhibit Description Page
- ------- ----------- ----
A Form of Distribution Agreement by
and among Colonial Realty Limited
Partnership, Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Lehman Brothers Inc., J.P. Morgan
& Co., and UBS Securities LLC, with the
attached Administrative Procedures.
B Form of Officers' Certificate
evidencing the terms of the Fixed
Rate Notes and the Floating Rate
Notes to be provided to Bankers
Trust Company (the "Trustee") pursuant
to Section 301 of the Indenture
dated July 22, 1996 between
Colonial Realty Limited Partnership
and Bankers Trust Company (the
"Indenture")the attached form
of Notes.
C Consolidated and Combined Calculation
of Ratio of Earnings to Fixed Charges
for the six months ended June 30,
1996 and the years ended December 31,
1995, 1994, 1993, 1992 and 1991 for
Colonial Realty Limited Partnership and
Predecessor Business (amending and
superseding Exhibit 12 to Registration
Statement No. 333-14401).
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Exhibit A
COLONIAL REALTY LIMITED PARTNERSHIP
Medium-Term Notes
Due Nine Months or More From Date of Issue
DISTRIBUTION AGREEMENT
December , 1996
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
LEHMAN BROTHERS INC.
3 World Financial Center
New York, New York 10285
J.P. MORGAN SECURITIES INC.
60 Wall Street
New York, New York 10260-0060
UBS SECURITIES LLC
299 Park Avenue
New York, New York 10171-0026
Dear Sirs:
Colonial Realty Limited Partnership, a Delaware limited partnership (the
"Company"), confirms its agreement with Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Lehman Brothers Inc., J.P. Morgan
Securities Inc. and UBS Securities LLC (each, an "Agent," and collectively, the
"Agents") with respect to the issue and sale by the Company of its Medium-Term
Notes Due Nine Months or More From Date of Issue (the "Notes"). The Notes are
to be issued pursuant to an Indenture, dated as of July 22, 1996, as amended or
modified from time to time (the "Indenture"), between the Company and Bankers
Trust Company, as trustee (the "Trustee"). As of the date hereof, the Company
has authorized the issuance and sale of up to U.S. $370,000,000 aggregate
initial offering price of Notes (or its
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equivalent, based upon the exchange rate on the applicable trade date in such
foreign or composite currencies as the Company shall designate at the time of
issuance) to or through the Agents pursuant to the terms of this Agreement. It
is understood, however, that the Company may from time to time authorize the
issuance of additional Notes and that such additional Notes may be sold to or
through the Agents pursuant to the terms of this Agreement, all as though the
issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company to one or
more Agents as principal for resale to investors and other purchasers and for
the sale of Notes by the Company directly to investors (as may from time to time
be agreed to by the Company and the applicable Agent), in which case such Agent
will act as an agent of the Company in soliciting offers for the purchase of
Notes.
The Company has filed with the Securities and Exchange Commission (the
"Commission") registration statements on Form S-3 (Nos. 333-04301 and 333-14401)
for the registration of debt securities, including the Notes, under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations"), and the Company
has filed such post-effective amendments thereto as may be required prior to any
acceptance by the Company of an offer for the purchase of Notes. Such
registration statements (as so amended, if applicable) have been declared
effective by the Commission and the Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statements (as so amended, if applicable) are collectively referred to herein as
the "Registration Statement"; and the final prospectus and all applicable
amendments or supplements thereto (including the final prospectus supplement and
pricing supplements relating to the offering of Notes), in the form first
furnished to the applicable Agent(s) referred to herein as the "Prospectus";
provided, however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to any acceptance by the Company of an offer for the purchase
of Notes; provided, further, that if the Company files a registration statement
with the Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the
"Rule 462(b) Registration Statement"), then, after such filing, all references
to the "Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement. A "preliminary prospectus" shall be deemed to refer to
any prospectus used before the registration statement became effective and any
prospectus furnished by the Company after the registration statement became
effective and before any acceptance by the Company of an offer for the purchase
of Notes which omitted information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations. For purposes of this Agreement, all references to the Registration
Statement, Prospectus or preliminary prospectus or to any amendment or
supplement thereto shall be deemed to include any copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("EDGAR").
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All references in this Agreement to financial statements and schedules and
other information which is "disclosed," "contained," "included," "described" or
"stated" (or other references of like import) in the Registration Statement,
Prospectus or preliminary prospectus shall be deemed to include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, Prospectus or preliminary
prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to include the filing of any document
under the 1934 Act which is incorporated by reference in the Registration
Statement, Prospectus or preliminary prospectus, as the case may be.
SECTION 1. Appointment as Agent.
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(a) Appointment. Subject to (i) the terms and conditions stated herein
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and (ii) the reservation by the Company of the right to sell Notes directly on
its own behalf and to appoint, upon at least 30 days' prior written notice to
the Agents, additional persons to serve as Agents hereunder (provided that such
persons are engaged on the same terms and conditions as those contained in this
Agreement), the Company hereby agrees that Notes will be sold to or through the
Agents and that it will not appoint any other agents to act on its behalf, or to
assist it, in the placement of the Notes; provided, however, that
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notwithstanding anything to the contrary included in this Agreement, the Company
may accept any offer to purchase Notes from or through any broker or dealer
(other than an Agent) if (i) the Company shall not have solicited such offer,
(ii) such broker or dealer is engaged on the same terms and conditions as those
contained in this Agreement and (iii) the Company notifies the Agents promptly
following acceptance of such an offer.
(b) Sale of Notes. The Company shall not sell or approve the
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solicitation of offers for the purchase of Notes in excess of the amount which
shall be authorized by the Company from time to time or in excess of the
aggregate initial offering price of Notes registered pursuant to the
Registration Statement. The Agents shall have no responsibility for maintaining
records with respect to the aggregate initial offering price of Notes sold, or
of otherwise monitoring the availability of Notes for sale, under the
Registration Statement.
(c) Purchases as Principal. The Agents shall not have any obligation to
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purchase Notes from the Company as principal. However, absent an agreement
between an Agent and the Company that such Agent shall be acting solely as an
agent for the Company, such Agent shall be deemed to be acting as principal in
connection with any offering of Notes by the Company through such Agent.
Accordingly, the Agents, individually or in a syndicate, may agree from time to
time to purchase Notes from the Company as principal for resale to investors and
other purchasers determined by such Agents. Any purchase of Notes from the
Company by an Agent as principal shall be made in accordance with Section 3(a)
hereof.
(d) Solicitations as Agent. If agreed upon between an Agent and the
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Company, such Agent, acting solely as an agent for the Company and not as
principal, will solicit offers for the purchase of Notes. Such Agent will
communicate to the Company, orally, each offer for the
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purchase of Notes solicited by it on an agency basis other than those offers
rejected by such Agent. Such Agent shall have the right, in its discretion
reasonably exercised, to reject any offer for the purchase of Notes, in whole or
in part, and any such rejection shall not be deemed a breach of its agreement
contained herein. The Company may accept or reject any offer for the purchase of
Notes, in whole or in part. Such Agent shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer for the
purchase of Notes has been solicited by it on an agency basis and accepted by
the Company. Such Agent shall not have any liability to the Company in the event
that any such purchase is not consummated for any reason. If the Company shall
default on its obligation to deliver Notes to a purchaser whose offer has been
solicited by such Agent on an agency basis and accepted by the Company, the
Company shall (i) hold such Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company and (ii) pay to such
Agent any commission to which it would otherwise be entitled absent such
default.
(e) Reliance. The Company and the Agents agree that any Notes purchased
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from the Company by one or more Agents as principal shall be purchased, and any
Notes the placement of which an Agent arranges as an agent of the Company shall
be placed by such Agent, in reliance on the representations, warranties,
covenants and agreements of the Company contained herein and on the terms and
conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
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(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether to such Agent as principal or through such Agent as
agent), as of the date of each delivery of Notes (whether to such Agent as
principal or through such Agent as agent) (the date of each such delivery to
such Agent as principal is referred to herein as a "Settlement Date"), and as of
any time that the Registration Statement or the Prospectus shall be amended or
supplemented (each of the times referenced above is referred to herein as a
"Representation Date"), as follows:
(i) Due Incorporation, Good Standing and Due Qualification of the
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Company. The Company has been duly formed and is validly existing as a
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partnership in good standing under the laws of Delaware with requisite
power and authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and to enter into this
Agreement and consummate the transactions contemplated in the Prospectus;
the Company is duly qualified as a foreign partnership 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 or the
conduct of business, except where the failure to so qualify or be in good
standing would not result in a material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise
(a "Material Adverse Effect").
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(ii) Due Incorporation, Good Standing and Due Qualification of
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Significant Subsidiaries. Each significant subsidiary (as such term is
------------------------
defined in Rule 1-02 of Regulation S-X promulgated under the 1933 Act), if
any (each a "Significant Subsidiary"), has been duly organized, is validly
existing and is in good standing under the laws of the jurisdiction of its
organization, has the requisite corporate or partnership power and
authority to own, lease and operate its properties and conduct its business
as described in the Prospectus and is duly qualified 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 or the
conduct of business, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect; except as otherwise
stated in the Prospectus, all of the issued and outstanding capital stock
or other ownership interests in each Significant Subsidiary, if any, have
been duly authorized and validly issued, are fully paid and non-assessable
and are owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity; and none of the outstanding shares of capital stock or other
ownership interests in any Significant Subsidiary was issued in violation
of preemptive or other similar rights of any securityholder of such
Significant Subsidiary.
(iii) Agreement of Limited Partnership. The Agreement of Limited
--------------------------------
Partnership of the Company, as amended and restated, has been duly and
validly authorized, executed and delivered by Colonial Properties Holding
Company, Inc. ("CPHC"), as general partner of the Company, and by the
limited partners of the Company, and is a valid and binding agreement of
CPHC and such limited partners of the Company, enforceable in accordance
with its terms, except as limited by (a) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights or remedies of
creditors or (b) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be
brought.
(iv) Registration Statement and Prospectus. The Company meets the
-------------------------------------
requirements for use of Form S-3 under the 1933 Act; the Registration
Statement (including any Rule 462(b) Registration Statement) has become
effective under the 1933 Act and no stop order suspending the effectiveness
of the Registration Statement (including any Rule 462(b) Registration
Statement) has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with; the
Indenture has been duly qualified under the 1939 Act; at the respective
times that the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendment thereto (including the filing of
the Company's most recent Annual Report on Form 10-K, if any, with the
Commission (the "Annual Report on Form 10-K")) became effective and
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at each Representation Date, the Registration Statement (including any Rule
462(b) Registration Statement) and any amendments thereto complied and will
comply in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and the 1939 Act and the rules and regulations of
the Commission under the 1939 Act (the "1939 Act Regulations") and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading (provided, however, that no
representation or warranty is made as to information contained in or
omitted from that part of the Registration Statement which shall constitute
the Statement of Eligibility on Form T-1 under the Trust Indenture Act of
Trustee under the Indenture); each preliminary prospectus and prospectus
filed as part of the Registration Statement as originally filed or as part
of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations; each preliminary prospectus and the Prospectus delivered to
the applicable Agent(s) for use in connection with the offering of Notes
are identical to any electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T; and at the date hereof, at the date of the Prospectus and
at each Representation Date, neither the Prospectus nor any amendment or
supplement thereto included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by the Agents expressly for use in the
Registration Statement or the Prospectus.
(v) Incorporated Documents. The documents incorporated or deemed to
----------------------
be incorporated by reference in the Prospectus, at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the rules and
regulations of the Commission under the 1934 Act (the "1934 Act
Regulations") and, when read together with the other information in the
Prospectus, at the date hereof, at the date of the Prospectus and at each
Representation Date, did not and will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(vi) Independent Accountants. The accountants who certified the
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financial statements and any supporting schedules thereto included in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(vii) Financial Statements. The financial statements of the Company
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(including the related notes and supporting schedules) filed as part of the
Registration Statement or
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included or incorporated by reference in the Prospectus present fairly the
financial condition and results of operations of the entities purported to
be shown thereby, at the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved; the
historical summaries of revenue and certain operating expenses filed as
part of the Registration Statement or included or incorporated by reference
in the Prospectus present fairly the revenue and those operating expenses
included in such summaries of the properties related thereto for the
periods specified in conformity with generally accepted accounting
principles; the selected financial data and the summary financial
information included or incorporated by reference in the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included or
incorporated by reference in the Registration Statement and the Prospectus;
the pro forma financial information, if any, included or incorporated by
reference in the Prospectus presents fairly the pro forma consolidated
financial condition and results of operations of the Company at the dates
and for the periods indicated and has been prepared, and the pro forma
adjustments set forth therein have been applied, in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described therein,
and the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein.
(viii) No Material Changes. Since the respective dates as of which
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information is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, (1) there has been no event or
occurrence that would result in a Material Adverse Effect, (2) there have
been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as
one enterprise and (3) no material casualty, loss or condemnation or other
material adverse event with respect to any of the Properties (as defined
below) has occurred.
(ix) Authorization, etc. of this Agreement, the Indenture and the
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Notes. This Agreement has been duly authorized, executed and delivered by
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the Company; the Indenture has been duly authorized, executed and delivered
by the Company and will be a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general
equitable principles, and except further as enforcement thereof may be
limited by (1) 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 (2)
governmental authority to limit, delay or prohibit the making of payments
outside the United States; the
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Notes have been duly authorized for offer, sale, issuance and delivery
pursuant to this Agreement and, when issued, authenticated and delivered in
the manner provided for in the Indenture and delivered against payment of
the consideration therefor, the Notes will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equity principles, and except further as
enforcement thereof may be limited by (1) requirements that a claim with
respect to any Notes 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 or exchange prevailing on a date determined pursuant to
applicable law or (2) governmental authority to limit, delay or prohibit
the making of payments outside the United States; the Notes will be
substantially in a form contemplated by the Indenture; and each holder of
Notes will be entitled to the benefits of the Indenture.
(x) Descriptions of the Indenture and the Notes. The Indenture and
-------------------------------------------
the Notes conform and will conform in all material respects to the
statements relating thereto contained in the Prospectus and are
substantially in the form filed or incorporated by reference, as the case
may be, as an exhibit to the Registration Statement.
(xi) Absence of Defaults and Conflicts. Neither the Company nor any
---------------------------------
of its subsidiaries is in violation of the provisions of its charter, by-
laws or partnership 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 the Company or any of its subsidiaries is a party or by which it or
any of them may be bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject (collectively, "Agreements
and Instruments"), except for such defaults that would not result in a
Material Adverse Effect; and the execution, delivery and performance of
this Agreement, the Indenture, the Notes and any other agreement or
instrument entered into or issued or to be entered into or issued by the
Company in connection with the transactions contemplated by the Prospectus,
and the consummation of the transactions contemplated herein and therein
and compliance by the Company with its obligations hereunder and thereunder
have been duly authorized by all necessary corporate or partnership action,
as the case may be, and does not and will not materially conflict with or
constitute a material breach of, or material default under, or result in
the creation or imposition of any material lien, charge or encumbrance upon
any property or assets of the Company or any of its subsidiaries pursuant
to, any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is a party or by
which any of them may be bound, or to which any of the property or assets
of the Company or any of its subsidiaries is subject, nor will such action
result in any violation of the charter, by-laws or partnership agreement of
the
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Company or any of its subsidiaries, or any applicable law, administrative
regulation or administrative or court decree.
(xii) Absence of Labor Disputes. No labor dispute with the employees
-------------------------
of the Company or any of its subsidiaries exists or, to the knowledge of
the Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any
subsidiary's principal suppliers, manufacturers, customers or contractors,
which, in either case, may reasonably be expected to result in a Material
Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit, proceeding,
----------------------
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or to the knowledge of
the Company threatened, against or affecting the Company or any of its
subsidiaries which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or which may
reasonably be expected to result in a Material Adverse Effect, or which may
reasonably be expected to materially and adversely affect the assets,
properties or operations thereof or the performance by the Company of its
obligations under this Agreement, the Indenture and the Notes or in
connection with the transaction contemplated by the Prospectus; and the
aggregate of all pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of which any of their
respective assets, properties or operations is the subject which are not
described in the Registration Statement and the Prospectus, including
ordinary routine litigation incidental to the business, may not reasonably
be expected to result in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or documents
--------------------
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(xv) Possession of Intellectual Property. The Company and its
-----------------------------------
subsidiaries own or possess, or can acquire on reasonable terms,
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, and neither the Company or any of its subsidiaries
has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the
Company or any of its subsidiaries therein, and which infringement,
conflict, invalidity or inadequacy, singly or in the aggregate, if the
subject of any unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(xvi) Possession of Licenses and Permits. The Company and its
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subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively,
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"Governmental Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by them; the Company and its subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, result in a
Material Adverse Effect; all of the Governmental Licenses are valid and in
full force and effect, except where the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force
and effect would not result in a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(xvii) Title to Property. Except as otherwise disclosed in the
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Prospectus and except as would not have a Material Adverse Effect: (a)
except for the portion of Macon Mall that is leased by the Company pursuant
to a long-term subordinated ground lease, the Company or its subsidiaries
have good and marketable title in fee simple to all real property and
improvements described in the Prospectus as being owned by the Company or
any of its subsidiaries in fee (collectively, the "Properties"); (b) all
liens, charges, encumbrances, claims or restrictions on or affecting the
real property and improvements owned by the Company or any of its
subsidiaries which are required to be disclosed in the Prospectus are
disclosed therein; (c) neither the Company nor any of its subsidiaries, or
to the knowledge of the Company, any lessee of any portion of the real
property or improvements owned by the Company or any of its subsidiaries,
is in default under any of the leases pursuant to which the Company or any
of its subsidiaries leases such real property or improvements, and the
Company and its subsidiaries know of no event which, but for the passage of
time or the giving of notice, or both, would constitute a default under any
of such leases; (d) all the real property and improvements owned by the
Company or any of its subsidiaries comply with all applicable codes and
zoning laws and regulations; and (e) the Company and its subsidiaries have
no knowledge of any pending or threatened condemnation, zoning change or
other proceeding or action that would in any manner affect the size of, use
of, improvements on, construction on, or access to any of the real property
or improvements owned by the Company or any of its subsidiaries.
(xviii) Environmental Laws. Except as otherwise disclosed in the
------------------
Prospectus or the Company's Registration Statement, the Company and its
subsidiaries have no knowledge of: (a) the unlawful presence of any
hazardous substances, hazardous materials, toxic substances or waste
materials (collectively, "Hazardous Materials") on any of the Properties or
(b) any unlawful spills, releases, discharges or disposal of Hazardous
Materials that have occurred or are presently occurring on or from the
Properties as a result of any construction on or operation and use of the
Properties, which presence or occurrence would have a Material Adverse
Effect; and in connection with the construction on or operation and use of
the Properties, the Company and its subsidiaries
10
<PAGE>
have no knowledge of any material failure to comply with all applicable
local, state and federal environmental laws, regulations, ordinances and
administrative and judicial orders relating to the generation, recycling,
reuse, sale, storage, handling, transport and disposal of any Hazardous
Materials that could have a Material Adverse Effect.
(xix) No Filings, Regulatory Approvals etc. No filing with, or
-------------------------------------
approval, authorization, consent, license, registration, qualification,
order or decree of, any court or governmental authority or agency, domestic
or foreign, is necessary or required for the performance by the Company of
its obligations under this Agreement, the Indenture and the Notes or in
connection with the transactions contemplated by the Prospectus, except
such as have been previously obtained or rendered, as the case may be
except such as may be required under the 1933 Act or the 1933 Act
Regulations, state securities laws or the rules of the National Association
of Securities Dealers, Inc. ("NASD").
(xx) Investment Company Act. The Company is not, and upon the
----------------------
issuance and sale of the Notes as herein contemplated and the application
of the net proceeds therefrom as described in the Prospectus will not be,
an "investment company" within the meaning of the Investment Company Act of
1940, as amended (the ("1940 Act").
(xxi) Commodity Exchange Act. The Notes, upon issuance, will be
----------------------
excluded or exempted under, or beyond the purview of, the Commodity
Exchange Act, as amended, and the rules and regulations of the Commodity
Futures Trading Commission under such Act, as amended.
(xxii) Ratings. To the Company's knowledge after due inquiry, the
-------
Medium-Term Note Program under which the Notes are issued (the "Program"),
as well as the Notes, are rated [ ] by Moody's Investors Service, Inc.
and [ ] by Standard & Poor's Ratings Service, or such other rating as
to which the Company shall have most recently notified the Agents pursuant
to Section 4(a) hereof.
(b) Additional Certifications. Any certificate signed by any officer of
-------------------------
the Company or any of its subsidiaries and delivered to one or more Agents or to
counsel for the Agents in connection with an offering of Notes to one or more
Agents as principal or through an Agent as agent shall be deemed a
representation and warranty by the Company to such Agent or Agents as to the
matters covered thereby on the date of such certificate and, unless subsequently
amended or supplemented, at each Representation Date subsequent thereto.
11
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SECTION 3. Purchases as Principal; Solicitations as Agent.
----------------------------------------------
(a) Purchases as Principal. Notes purchased from the Company by the
----------------------
Agents, individually or in a syndicate, as principal shall be made in accordance
with terms agreed upon between such Agent or Agents and the Company (which
terms, unless otherwise agreed, shall, to the extent applicable, include those
terms specified in Exhibit A hereto and shall be agreed upon orally, with
written confirmation prepared by such Agent or Agents and mailed to the
Company). An Agent's commitment to purchase Notes as principal shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions herein
set forth. Unless the context otherwise requires, references herein to "this
Agreement" shall include the applicable agreement of one or more Agents to
purchase Notes from the Company as principal. Each purchase of Notes, unless
otherwise agreed, shall be at a discount from the principal amount of each such
Note equivalent to the applicable commission set forth in Schedule A hereto.
The Agents may engage the services of any broker or dealer in connection with
the resale of the Notes purchased by them as principal and may allow all or any
portion of the discount received from the Company in connection with such
purchases to such brokers or dealers. At the time of each purchase of Notes
from the Company by one or more Agents as principal, such Agent or Agents shall
specify the requirements for the officers' certificate, opinions of counsel and
comfort letter pursuant to Sections 7(b), 7(c) and 7(d) hereof.
If the Company and two or more Agents enter into an agreement pursuant to
which such Agents agree to purchase Notes from the Company as principal and one
or more of such Agents shall fail at the Settlement Date to purchase the Notes
which it or they are obligated to purchase (the "Defaulted Notes"), then the
nondefaulting Agents shall have the right, within 24 hours thereafter, to make
arrangements for one of them or one or more other Agents or underwriters to
purchase all, but not less than all, of the Defaulted Notes in such amounts as
may be agreed upon and upon the terms herein set forth; provided, however, that
if such arrangements shall not have been completed within such 24-hour period,
then:
(i) if the aggregate principal amount of Defaulted Notes does not
exceed 10% of the aggregate principal amount of Notes to be so purchased by
all of such Agents on the Settlement Date, the nondefaulting Agents shall
be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective initial underwriting
obligations bear to the underwriting obligations of all nondefaulting
Agents, or
(ii) if the aggregate principal amount of Defaulted Notes exceeds 10%
of the aggregate principal amount of Notes to be so purchased by all of
such Agents on the Settlement Date, such agreement shall terminate without
liability on the part of any nondefaulting Agent.
12
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No action taken pursuant to this paragraph shall relieve any defaulting Agent
from liability in respect of its default. In the event of any such default
which does not result in a termination of such agreement, either the
nondefaulting Agents or the Company shall have the right to postpone the
Settlement Date for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any other
documents or arrangements.
(b) Solicitations as Agent. On the basis of the representations and
----------------------
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use its reasonable efforts to solicit offers for the purchase of
Notes upon the terms set forth in the Prospectus. The Agents are not authorized
to appoint sub-agents with respect to Notes sold through them as agent. All
Notes sold through an Agent as agent will be sold at 100% of their principal
amount unless otherwise agreed upon between the Company and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers for the purchase of Notes through an Agent, as an agent
of the Company, commencing at any time for any period of time or permanently.
As soon as practicable after receipt of instructions from the Company, such
Agent will suspend solicitation of offers for the purchase of Notes from the
Company until such time as the Company has advised such Agent that such
solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent, as an
agent of the Company, as set forth in Schedule A hereto.
(c) Administrative Procedures. The purchase price, interest rate or
-------------------------
formula, maturity date and other terms of the Notes specified in Exhibit A
hereto (as applicable) shall be agreed upon between the Company and the
applicable Agent(s) and specified in a pricing supplement to the Prospectus
(each, a "Pricing Supplement") to be prepared by the Company in connection with
each sale of Notes. Except as otherwise specified in the applicable Pricing
Supplement, the Notes will be issued in denominations of U.S. $1,000 or any
larger amount that is an integral multiple of U.S. $1,000. The Agents and the
Company agree to perform, and the Company agrees to cause the Trustee to agree
to perform, their respective duties and obligations specifically provided to be
performed by them in the Administrative Procedures set forth in Exhibit B hereto
(the "Procedures").
SECTION 4. Covenants of the Company.
------------------------
The Company covenants and agrees with each Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agents
------------------------
immediately, and confirm such notice in writing, of (i) the effectiveness of any
post-effective amendment to the
13
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Registration Statement or the filing of any amendment or supplement to the
Prospectus (other than any amendment or supplement thereto providing solely for
the determination of the variable terms of the Notes or relating solely to the
offering of securities other than the Notes), (ii) the receipt of any comments
from the Commission, (iii) any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or
for additional information, (iv) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement, or of any
order preventing or suspending the use of any preliminary prospectus, or of the
initiation of any proceedings for that purpose or (v) any change in the rating
assigned by any nationally recognized statistical rating organization to the
Program or any debt securities (including the Notes) of the Company, or the
public announcement by any nationally recognized statistical rating organization
that it has under surveillance or review, with possible negative implications,
its rating of the Program or any such debt securities, or the withdrawal by any
nationally recognized statistical rating organization of its rating of the
Program or any such debt securities. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing or Use of Amendments. The Company will give the Agents advance
---------------------------
notice of its intention to file or prepare any additional registration statement
with respect to the registration of additional Notes, any amendment to the
Registration Statement (including any filing under Rule 462(b) of the 1933 Act
Regulations) or any amendment or supplement to the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus
(other than an amendment or supplement thereto providing solely for the
determination of the variable terms of the Notes or relating solely to the
offering of securities other than the Notes), whether pursuant to the 1933 Act,
the 1934 Act or otherwise, will furnish to the Agents copies of any such
document a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file any such document to which the Agents or
counsel for the Agents shall object.
(c) Delivery of the Registration Statement. The Company has furnished to
--------------------------------------
each Agent and to counsel for the Agents, without charge, signed and conformed
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated or deemed to be incorporated by reference therein)
and signed and conformed copies of all consents and certificates of experts.
Copies of the Registration Statement and each amendment thereto furnished to the
Agents will be identical to any electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(d) Delivery of the Prospectus. The Company will deliver to each Agent,
---------------------------
without charge, as many copies of each preliminary prospectus as such Agent may
reasonably request, and the Company hereby consents to the use of such copies
for purposes permitted by the 1933 Act. The Company will furnish to each Agent,
without charge, such number of copies of the Prospectus (as amended or
supplemented) as such Agent may reasonably request. The
14
<PAGE>
Prospectus and any amendments or supplements thereto furnished to the Agents
will be identical to any electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) Preparation of Pricing Supplements. The Company will prepare, with
----------------------------------
respect to any Notes to be sold to or through one or more Agents pursuant to
this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Agents. The Company will deliver such Pricing
Supplement no later than 11:00 a.m., New York City time, on the business day
following the date of the Company's acceptance of the offer for the purchase of
such Notes and will file such Pricing Supplement pursuant to Rule 424(b)(3)
under the 1933 Act not later than the close of business of the Commission on the
fifth business day after the date on which such Pricing Supplement is first
used.
(f) Revisions of Prospectus -- Material Changes. Except as otherwise
-------------------------------------------
provided in subsection (m) of this Section 4, if at any time during the term of
this Agreement any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Agents or counsel for
the Company, to amend the Registration Statement in order that the Registration
Statement will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or to amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time
the Prospectus is delivered to a purchaser, or if it shall be necessary, in the
opinion of either such counsel, to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company shall give immediate notice,
confirmed in writing, to the Agents to cease the solicitation of offers for the
purchase of Notes in their capacity as agents and to cease sales of any Notes
they may then own as principal, and the Company will promptly prepare and file
with the Commission, subject to Section 4(b) hereof, such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Registration Statement and Prospectus comply with such requirements, and the
Company will furnish to the Agents, without charge, such number of copies of
such amendment or supplement as the Agents may reasonably request. In addition,
the Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934
Act and the 1934 Act Regulations so as to permit the completion of the
distribution of each offering of Notes.
(g) Prospectus Revisions -- Periodic Financial Information. Except as
------------------------------------------------------
otherwise provided in subsection (m) of this Section 4, on or prior to the date
on which there shall be released to the general public interim financial
statement information related to the Company with respect to each of the first
three quarters of any fiscal year or preliminary financial statement information
with respect to any fiscal year, the Company shall furnish such information to
the Agents, confirmed in writing, and shall cause the Prospectus to include
financial information with respect thereto and corresponding information for the
comparable
15
<PAGE>
period of the preceding fiscal year, as well as such other information and
explanations as shall be necessary for an understanding thereof or as shall be
required by the 1933 Act or the 1933 Act Regulations.
(h) Prospectus Revisions -- Audited Financial Information. Except as
-----------------------------------------------------
otherwise provided in subsection (m) of this Section 4, on or prior to the date
on which there shall be released to the general public financial information
included in or derived from the audited consolidated financial statements of the
Company for the preceding fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and shall cause the Prospectus
to include such audited consolidated financial statements and the report or
reports, and consent or consents to such inclusion, of the independent
accountants with respect thereto, as well as such other information and
explanations as shall be necessary for an understanding of such consolidated
financial statements or as shall be required by the 1933 Act or the 1933 Act
Regulations.
(i) Earnings Statements. The Company will timely file such reports
-------------------
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(j) Reporting Requirements. The Company, during the period when the
----------------------
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods prescribed by the 1934 Act and the 1934 Act
Regulations.
(k) Restriction on Offers and Sales of Securities. Unless otherwise
---------------------------------------------
agreed upon between one or more Agents acting as principal and the Company,
between the date of the agreement by such Agent(s) to purchase the related Notes
from the Company and the Settlement Date with respect thereto, the Company will
not, without the prior written consent of such Agent(s), issue, sell, offer or
contract to sell, grant any option for the sale of, or otherwise dispose of, any
debt securities of the Company (other than the Notes that are to be sold
pursuant to such agreement or commercial paper in the ordinary course of
business).
(l) Use of Proceeds. The Company will use the net proceeds received by
---------------
it from the issuance and sale of the Notes in the manner specified in the
Prospectus.
(m) Suspension of Certain Obligations. The Company shall not be required
---------------------------------
to comply with the provisions of subsection (f), (g) or (h) of this Section 4
during any period from the time (i) the Agents shall have suspended solicitation
of offers for the purchase of Notes in their capacity as agents pursuant to a
request from the Company and (ii) no Agent shall then hold any Notes purchased
from the Company as principal, as the case may be, until the time the Company
shall determine that solicitation of offers for the purchase of Notes should be
resumed or an Agent shall subsequently purchase Notes from the Company as
principal.
16
<PAGE>
SECTION 5. Conditions of Agents' Obligations.
---------------------------------
The obligations of one or more Agents to purchase Notes from the Company as
principal and to solicit offers for the purchase of Notes as an agent of the
Company, and the obligations of any purchasers of Notes sold through an Agent as
an agent of the Company, will be subject to the accuracy of the representations
and warranties on the part of the Company herein contained or contained in any
certificate of an officer of the Company or any of its subsidiaries delivered
pursuant to the provisions hereof, to the performance and observance by the
Company of its covenants and other obligations hereunder, and to the following
additional conditions precedent:
(a) Effectiveness of Registration Statement. The Registration Statement
---------------------------------------
(including any Rule 462(b) Registration Statement) has become effective under
the 1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or shall be pending or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Agents.
(b) Legal Opinions. On the date hereof, the Agents shall have received
--------------
the following legal opinions, dated as of the date hereof and in form and
substance satisfactory to the Agents:
(1) Opinions of Counsel for the Company. The favorable opinion of
-----------------------------------
Hogan & Hartson L.L.P., counsel for the Company, to the effect set forth in
Exhibit C hereto and to such further effect as the Agents may reasonably
request, and the favorable opinion of Leitman, Siegal, Payne & Campbell,
P.C., special real estate counsel for the Company, to the effect set forth
in Exhibit D hereto and to such further extent as the Agents may reasonably
request.
(2) Opinion of Counsel for the Agents. The favorable opinion of
---------------------------------
Brown & Wood LLP, counsel for the Agents, with respect to such matters as
the Agents may reasonably request.
(c) Officer's Certificate. On the date hereof, there shall not have been,
---------------------
since the respective dates as of which information is given in the Prospectus,
any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Agents shall have received a certificate of
the President or a Senior Vice President of CPHC and of the chief financial
officer and chief accounting officer of CPHC, dated as of the date hereof, to
the effect that (i) there has been no such material adverse change, (ii) the
representations and warranties of the Company herein contained are true and
correct with the same force and effect as though expressly made at and as of the
date of such certificate, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the date of such certificate, and (iv) no stop order
17
<PAGE>
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or, to the
best of such officer's knowledge, are threatened by the Commission.
(d) Comfort Letter of Coopers & Lybrand LLP. On the date hereof, the
---------------------------------------
Agents shall have received a letter from Coopers & Lybrand LLP, dated as of the
date hereof and in form and substance satisfactory to the Agents, to the effect
set forth in Exhibit E hereto.
(e) Additional Documents. On the date hereof, counsel to the Agents
--------------------
shall have been furnished with such documents and opinions as such counsel may
require for the purpose of enabling such counsel to pass upon the issuance and
sale of Notes as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of Notes as herein
contemplated shall be satisfactory in form and substance to the Agents and to
counsel to the Agents.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
applicable Agent or Agents by notice to the Company at any time and any such
termination shall be without liability of any party to any other party except as
provided in Section 10 hereof and except that Sections 8, 9, 11, 14 and 15
hereof shall survive any such termination and remain in full force and effect.
SECTION 6. Delivery of and Payment for Notes Sold through an Agent as Agent.
----------------------------------------------------------------
Delivery of Notes sold through an Agent as an agent of the Company shall be
made by the Company to such Agent for the account of any purchaser only against
payment therefor in immediately available funds. In the event that a purchaser
shall fail either to accept delivery of or to make payment for a Note on the
date fixed for settlement, such Agent shall promptly notify the Company and
deliver such Note to the Company and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure has occurred for any reason other than default by such
Agent in the performance of its obligations hereunder, the Company will
reimburse such Agent on an equitable basis for its loss of the use of the funds
for the period such funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
-----------------------------------
The Company further covenants and agrees with each Agent as follows:
(a) Reaffirmation of Representations and Warranties. Each acceptance by
-----------------------------------------------
the Company of an offer for the purchase of Notes (whether to one or more Agents
as principal or through an Agent as agent), and each delivery of Notes (whether
to one or more Agents as principal or through an Agent as agent), shall be
deemed to be an affirmation that the representations and warranties of the
Company herein contained and contained in any certificate
18
<PAGE>
theretofore delivered to the Agents pursuant hereto are true and correct at the
time of such acceptance or sale, as the case may be, and an undertaking that
such representations and warranties will be true and correct at the time of
delivery to such Agent(s) or to the purchaser or its agent, as the case may be,
of the Notes relating to such acceptance or sale, as the case may be, as though
made at and as of each such time (it being understood that such representations
and warranties shall relate to the Registration Statement and Prospectus as
amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
-----------------------------------
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of securities
other than the Notes), (ii) (if required in connection with the purchase of
Notes from the Company by one or more Agents as principal) the Company sells
Notes to one or more Agents as principal or (iii) the Company sells Notes in a
form not previously certified to the Agents by the Company, the Company shall
furnish or cause to be furnished to the Agent(s), forthwith a certificate dated
the date of filing with the Commission or the date of effectiveness of such
amendment or supplement, as applicable, or the date of such sale, as the case
may be, in form satisfactory to the Agent(s) to the effect that the statements
contained in the certificate referred to in Section 5(c) hereof which were last
furnished to the Agents are true and correct at the time of the filing or
effectiveness of such amendment or supplement, as applicable, or the time of
such sale, as the case may be, as though made at and as of such time (except
that such statements shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
Section 5(c) hereof, modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such certificate (it being understood that, in the case of clause (ii) above,
any such certificate shall also include a certification that there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise since the date of the agreement by
such Agent(s) to purchase Notes from the Company as principal).
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
-------------------------------------
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of securities
other than the Notes), (ii) (if required in connection with the purchase of
Notes from the Company by one or more Agents as principal) the Company sells
Notes to one or more Agents as principal or (iii) the Company sells Notes in a
form not previously certified to the Agents by the Company, the Company shall
furnish or cause to be furnished forthwith to the Agent(s) and to counsel to the
Agents the written opinions of Hogan & Hartson L.L.P., counsel to the Company,
and Leitman, Siegal, Payne & Campbell, P.C., special real estate counsel to the
Company, or other counsel satisfactory to the Agent(s), dated the date of filing
with the Commission or the date of effectiveness of such amendment or
supplement, as applicable, or the date of such sale, as the case may be, in form
and substance satisfactory to the
19
<PAGE>
Agent(s), of the same tenor as the opinion referred to in Section 5(b)(1)
hereof, but modified, as necessary, to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
opinion or, in lieu of such opinion, counsel last furnishing such opinion to the
Agents shall furnish the Agent(s) with a letter substantially to the effect that
the Agent(s) may rely on such last opinion to the same extent as though it was
dated the date of such letter authorizing reliance (except that statements in
such last opinion shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that (i) the
--------------------------------------
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information (other than by an amendment or
supplement relating solely to the issuance and/or offering of securities other
than the Notes) or (ii) (if required in connection with the purchase of Notes
from the Company by one or more Agents as principal) the Company sells Notes to
one or more Agents as principal, the Company shall cause Coopers & Lybrand
L.L.P. forthwith to furnish to the Agent(s) a letter, dated the date of filing
with the Commission or the date of effectiveness of such amendment or
supplement, as applicable, or the date of such sale, as the case may be, in form
satisfactory to the Agent(s), of the same tenor as the letter referred to in
Section 5(d) hereof but modified to relate to the Registration Statement and
Prospectus as amended and supplemented to the date of such letter.
SECTION 8. Indemnification.
---------------
(a) Indemnification of the Agents. The Company agrees to indemnify and
-----------------------------
hold harmless each Agent and each person, if any, who controls such Agent within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of an untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that (subject to Section
8(d) hereof) any such settlement is effected with the written consent of
the Company; and
20
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(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by such Agent), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under subparagraph (i) or (ii)
above;
provided, however, that this indemnity does not apply to any loss, liability,
- -------- -------
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by the Agents
expressly for use in the Registration Statement (or any amendment thereto) or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Indemnification of Company, Directors and Officers. Each Agent
--------------------------------------------------
severally agrees to indemnify and hold harmless the Company, each director of
CPHC, each person who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in Section 8(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by the Agents expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party shall
-------------------------------------
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of such action. If it so elects within a
reasonable time after receipt of such notice, an indemnifying party, jointly
with other indemnifying parties receiving such notice, may assume the defense of
such action with counsel chosen by it and approved by the indemnified parties'
defendant in such action, unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses available to them
which are different from or in addition to those available to such indemnifying
party. If an indemnifying party assumes the defense of such action in
accordance with the preceding sentence, the indemnifying parties shall not be
liable for any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to
any
21
<PAGE>
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 8 or 9 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 8(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 9. Contribution.
------------
If the indemnification provided for in Section 8 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and the applicable
Agent(s), on the other hand, from the offering of the Notes that were the
subject of the claim for indemnification or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and the
applicable Agent(s), on the other hand, in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
applicable Agent(s), on the other hand, in connection with the offering of the
Notes that were the subject of the claim for indemnification shall be deemed to
be in the same respective proportions as the total net proceeds from the
offering of such Notes (before deducting expenses) received by the
22
<PAGE>
Company and the total discount or commission received by each applicable Agent,
as the case may be, bears to the aggregate initial offering price of such Notes.
The relative fault of the Company, on the one hand, and the applicable
Agent(s), on the other hand, shall be determined by reference to, among other
things, whether any 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 Company or by the applicable Agent(s) and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Agents agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
(even if the applicable Agent(s) were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to above in this Section 9. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 9 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 9, (i) no Agent shall be
required to contribute any amount in excess of the amount by which the total
discount or commission received by such Agent in connection with the offering of
the Notes that were the subject of the claim for indemnification exceeds the
amount of any damages which such Agent has otherwise been required to pay be
reason of any applicable untrue or alleged untrue statement or omission or
alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. In addition, in connection with an offering of Notes
purchased from the Company by two or more Agents as principal, the respective
obligations of such Agents to contribute pursuant to this Section 9 are several,
and not joint, in proportion to the aggregate principal amount of Notes that
each such Agent has agreed to purchase from the Company.
For purposes of this Section 9, each person, if any, who controls an Agent
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as such Agent, and each director of
CPHC, each person who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company.
23
<PAGE>
SECTION 10. Payment of Expenses.
-------------------
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation, filing, printing and delivery of the Registration
Statement as originally filed and all amendments thereto and any preliminary
prospectus, the Prospectus and any amendments or supplements thereto;
(b) The preparation, printing and delivery of this Agreement and the
Indenture;
(c) The preparation, issuance and delivery of the Notes, including any
fees and expenses relating to the eligibility and issuance of Notes in book-
entry form and the cost of obtaining CUSIP or other identification numbers for
the Notes;
(d) The fees and disbursements of the Company's accountants, counsel and
other advisors or agents (including any calculation agent or exchange rate
agent) and of the fees of the Trustee;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred in connection with the establishment of the Program and incurred from
time to time in connection with the transactions contemplated hereby;
(f) The fees charged by nationally recognized statistical rating
organizations for the rating of the Program and the Notes;
(g) The fees and expenses incurred in connection with any listing of
Notes on a securities exchange;
(h) The filing fees incident to, and the reasonable fees and
disbursements of counsel to the Agents in connection with, the review, if any,
by the NASD; and
(i) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company or any of its subsidiaries
submitted pursuant hereto or thereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the Agents
or any controlling person of an Agent, or by or on behalf of the Company, and
shall survive each delivery of and payment for the Notes.
24
<PAGE>
SECTION 12. Termination.
-----------
(a) Termination of this Agreement. This Agreement (excluding any
-----------------------------
agreement by one or more Agents to purchase Notes from the Company as principal)
may be terminated for any reason, at any time by either the Company or an Agent,
as to itself, upon the giving of 30 days' prior written notice of such
termination to the other party hereto, but without prejudice to any rights,
obligations or liabilities of any party hereto accrued or incurred prior to such
termination.
(b) Termination of Agreement to Purchase Notes as Principal. The
-------------------------------------------------------
applicable Agent(s) may terminate any agreement by such Agent(s) to purchase
Notes from the Company as principal, immediately upon notice to the Company, at
any time prior to the Settlement Date relating thereto, if (i) there has been,
since the date of such agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development or event involving a prospective
change in political, financial or economic conditions, in each case the effect
of which is such as to make it, in the judgment of such Agent(s), impracticable
to market such Notes or enforce contracts for the sale of such Notes, or (iii)
trading in any securities of the Company has been suspended or limited by the
Commission or a national securities exchange, or if trading generally on either
the New York Stock Exchange or the American Stock Exchange or in the Nasdaq
National Market has been suspended or limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by
either of said exchanges or by such system or by order of the Commission, the
NASD or any other governmental authority, or (iv) a banking moratorium has been
declared by either Federal or New York authorities or by the relevant
authorities in the country or countries of origin of any foreign or composite
currency in which such Notes are denominated or payable, or (v) the rating
assigned by any nationally recognized statistical rating organization to the
Program or any debt securities (including the Notes) of the Company as of the
date of such agreement shall have been lowered or withdrawn since that date or
if any such rating organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of the
Program or any such debt securities.
(c) General. In the event of any such termination, neither party will
-------
have any liability to the other party hereto, except that (i) the Agents shall
be entitled to any commissions earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) any Agent shall own
any Notes purchased by it from the Company as principal or (b) an offer to
purchase any of the Notes has been accepted by the Company but the time of
delivery to the purchaser or his agent of such Notes relating thereto has not
occurred, the covenants set forth in Sections 4 and 7 hereof shall remain in
effect until such Notes are so resold or delivered, as the case may be, and
(iii) the covenant set forth in Section 4(i) hereof, the provisions of Section
10
25
<PAGE>
hereof, the indemnity and contribution agreements set forth in Sections 8 and
9 hereof, and the provisions of Sections 11, 14 and 15 hereof shall remain in
effect.
SECTION 13. Notices.
-------
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Colonial Realty Limited Partnership
c/o Colonial Properties Holding Company, Inc.
2101 Sixth Street North
Suite 750
Birmingham, Alabama 35202
Attention: Douglas B. Nunnelley
Telecopy No.: (205) 250-8820
If to the Agents:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower - 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy No.: (212) 449-2234
Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Attention: John Plaster
Telecopy No.: (212) 528-1718
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260-0060
Attention: Dennis Lopez
Telecopy No.: (212) 648-5044
26
<PAGE>
UBS Securities LLC
299 Park Avenue
Attention: Al Rabil
New York, New York 10171-0026
Telecopy No. (212) 821-3943
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. Parties.
-------
This Agreement shall inure to the benefit of and be binding upon the Agents
and the Company and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons, officers and directors referred to in Sections 8 and 9
hereof and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and their
respective successors, and said controlling persons, officers and directors and
their heirs and legal representatives, and for the benefit of no other person,
firm or corporation. No purchaser of Notes shall be deemed to be a successor by
reason merely of such purchase.
SECTION 15. GOVERNING LAW; FORUM.
--------------------
THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. ANY SUIT, ACTION OR PROCEEDING
BROUGHT BY THE COMPANY AGAINST ANY AGENT IN CONNECTION WITH OR ARISING UNDER
THIS AGREEMENT SHALL BE BROUGHT SOLELY IN THE STATE OR FEDERAL COURT OF
APPROPRIATE JURISDICTION LOCATED IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW
YORK.
SECTION 16. Effect of Headings.
------------------
The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
SECTION 17. Counterparts.
------------
This Agreement may be executed in one or more counterparts and, if executed
in more than one counterpart, the executed counterparts hereof shall constitute
a single instrument.
27
<PAGE>
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Distribution Agreement, along with all counterparts, will become a binding
agreement among the Agents and the Company in accordance with its terms.
Very truly yours,
COLONIAL REALTY LIMITED PARTNERSHIP
By: Colonial Properties Holding Company, Inc.,
its general partner
By: ___________________________________
Name: Douglas B. Nunnelley
Title: Senior Vice President and
Chief Financial Officer
CONFIRMED AND ACCEPTED,
AS OF THE DATE FIRST ABOVE WRITTEN:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:_______________________________
Authorized Signatory
LEHMAN BROTHERS INC.
By:_______________________________
Authorized Signatory
J.P. MORGAN SECURITIES INC.
By:_______________________________
Authorized Signatory
UBS SECURITIES LLC
By:_______________________________
Authorized Signatory
28
<PAGE>
The following terms, if applicable, shall be agreed to by one or more Agents
and the Company in connection with each sale of Notes:
Principal Amount: $_______
(or principal amount of foreign currency or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
[ ]LIBOR Reuters
[ ]LIBOR Telerate
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
[Price to Public: ___%, plus accrued interest, if any, from ___________]
Settlement Date and Time:
Additional/Other Terms:
<PAGE>
Also, in connection with the purchase of Notes from the Company by one or more
Agents as principal, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinions pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 4(k) of the Distribution Agreement.
<PAGE>
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company shall
pay the applicable Agent, on a discount basis, a commission for the sale of each
Note equal to the principal amount of such Note multiplied by the appropriate
percentage set forth below:
<TABLE>
<CAPTION>
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
<S> <C>
From 9 months to less than 1 year...................... .125%
From 1 year to less than 18 months..................... .150
From 18 months to less than 2 years.................... .200
From 2 years to less than 3 years...................... .250
From 3 years to less than 4 years...................... .350
From 4 years to less than 5 years...................... .450
From 5 years to less than 6 years...................... .500
From 6 years to less than 7 years...................... .550
From 7 years to less than 10 years..................... .600
From 10 years to less than 15 years.................... .625
From 15 years to less than 20 years.................... .700
From 20 years to 30 years.............................. .750
Greater than 30 years.................................. *
</TABLE>
- ------------------------------
* As agreed to by the Company and the applicable Agent at the time of sale.
<PAGE>
EXHIBIT B
Colonial Realty Limited Partnership
ADMINISTRATIVE PROCEDURES
for Fixed Rate and Floating Rate Medium-Term Notes
Due Nine Months or More from Date of Issue
(Dated as of December __, 1996)
Medium-Term Notes Due Nine Months or More from Date of Issue (the "Notes")
are to be offered on a continuing basis by Colonial Realty Limited
Partnership, a Delaware limited partnership (the "Company"), to or through
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Lehman Brothers Inc., J.P. Morgan Securities Inc., and UBS Securities LLC
(each, an "Agent" and, collectively, the "Agents") pursuant to a Distribution
Agreement, dated December __, 1996 (the "Distribution Agreement"), by and
among the Company and the Agents. The Distribution Agreement provides both for
the sale of Notes by the Company to one or more of the Agents as principal for
resale to investors and other purchasers and for the sale of Notes by the
Company directly to investors (as may from time to time be agreed to by the
Company and the related Agent or Agents), in which case each such Agent will
act as an agent of the Company in soliciting offers to purchase the Notes.
Unless otherwise agreed by the related Agent or Agents and the Company,
Notes will be purchased by the related Agent or Agents as principal. Such
purchases will be made in accordance with terms agreed upon by the related
Agent or Agents and the Company (which terms shall be agreed upon orally, with
written confirmation prepared promptly by the related Agent or Agents and
mailed promptly to the Company). If agreed upon by any Agent or Agents and
the Company, the Agent or Agents, acting solely as agent or agents for the
Company and not as principal, will use reasonable efforts to solicit offers to
purchase the Notes. Only those provisions in these Administrative Procedures
that are applicable to the particular role to be performed by the related
Agent or Agents shall apply to the offer and sale of the relevant Notes.
The Notes will be issued as a series of debt securities under an Indenture,
dated as of July 22, 1996, as amended, supplemented or modified from time to
time (the "Indenture"), between the Company and Bankers Trust Company, as
trustee (together with any successor in such capacity, the "Trustee"). The
Company has filed a Registration Statements with the Securities and Exchange
Commission (the "Commission") registering debt securities (which includes the
Notes) (the "Registration Statements"). The most recent base prospectus deemed
part of the Registration Statements, as supplemented
<PAGE>
with respect to the Notes, is herein referred to as "Prospectus". The most
recent supplement to the Prospectus setting forth the purchase price, interest
rate or formula, maturity date and other terms of the Notes (as applicable) is
herein referred to as the "Pricing Supplement".
The Notes will either be issued (a) in book-entry form and represented by
one or more fully registered global Notes (each, a "Global Note") delivered to
the Trustee, as custodian for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC, or (b) in certificated
form (each, a "Certificated Note") delivered to the investor or other
purchaser thereof or a person designated by such investor or other purchaser.
General procedures relating to the issuance of all Notes are set forth in
Part I hereof. Additionally, Notes issued in book-entry form will be issued
in accordance with the procedures set forth in Part II hereof and Certificated
Notes will be issued in accordance with the procedures set forth in Part III
hereof. Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed thereto in the Indenture or the Notes, as the case may
be.
PART I: PROCEDURES OF GENERAL
APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date of its
authentication by the Trustee. Each Note shall also
bear an original issue date (each, an "Original Issue
Date"). The Original Issue Date shall remain the same
for all Notes subsequently issued upon transfer,
exchange or substitution of an original Note regardless
of their dates of authentication.
Maturities: Each Note will mature on a date nine months or more
from its Original Issue Date (the "Stated Maturity
Date") selected by the investor or other purchaser and
agreed to by the Company.
Registration: Unless otherwise specified in the applicable Pricing
Supplement, Notes will be issued only in fully
registered form.
Denominations: Unless otherwise specified in the applicable Pricing
Supplement, the Notes
2
<PAGE>
will be issued in denominations
of $1,000 and integral multiples thereof.
Interest Rate Bases: Unless otherwise specified in the applicable Pricing
Supplement, the Notes will bear interest at fixed rates
("Fixed Rate Notes") or at floating rates ("Floating
Rate Notes") determined by reference to one or more
Interest Rate Bases or formulas, as adjusted by the
Spread and/or Spread Multiplier, if any, applicable to
such Floating Rate Notes.
Redemption/Repayment: The Notes will be subject to redemption by the Company
in accordance with the terms of the Notes, which will
be fixed at the time of sale and set forth in the
applicable Pricing Supplement. If no Initial
Redemption Date is specified on the face of a Note,
such Note will not be redeemable prior to its Stated
Maturity Date.
The Notes will be subject to repayment at the option of
the Holders thereof in accordance with the terms of the
Notes, which will be fixed at the time of sale and set
forth in the applicable Pricing Supplement. If no
Optional Repayment Date is specified on the face of a
Note, such Note will not be repayable at the option of
the Holder prior to its Stated Maturity Date.
Calculation of
Interest: Unless otherwise specified in the applicable Pricing
Supplement, interest on each Fixed Rate Note (including
payments for partial periods) will be calculated and
paid on the basis of a 360-day year of twelve 30-day
months.
The interest rate on each Floating Rate Note will be
calculated by reference to the specified Interest Rate
Basis or Bases plus or minus the applicable Spread, if
any, and/or multiplied by the applicable Spread
Multiplier, if any.
Unless otherwise specified in the applicable Pricing
Supplement, interest on each Floating Rate Note will be
calculated by multiplying its principal
3
<PAGE>
amount by an accrued interest factor. Such accrued
interest factor is computed by adding the interest
factor calculated for each day in the period for which
accrued interest is being calculated. Unless otherwise
specified in the applicable Pricing Supplement, the
interest factor for each such day is computed by
dividing the interest rate applicable to such day by
360 if the CD Rate, Commercial Paper Rate, Eleventh
District Cost of Funds Rate, Federal Funds Rate, LIBOR
or Prime Rate is an applicable Interest Rate Basis, or
by the actual number of days in the year if the CMT
Rate or Treasury Rate is an applicable Interest Rate
Basis. The interest factor for Notes for which the
interest rate is calculated with reference to two or
more Interest Rate Bases will be calculated in each
period in the same manner as if only the applicable
Interest Rate Basis specified in the applicable Pricing
Supplement applied.
Interest: General. Each Note will bear interest in accordance
-------
with its terms. Unless otherwise specified in the
applicable Pricing Supplement, interest on each Note
will accrue from and including the Original Issue Date
of such Note for the first interest period or from the
most recent Interest Payment Date (as defined below) to
which interest has been paid or duly provided for all
subsequent interest periods to but excluding the
applicable Interest Payment Date or the Stated Maturity
Date or date of earlier redemption, repayment or
acceleration of maturity or if the maturity of the Note
is extended, the new date of maturity specified in a
notice of such exercise, as the case may be (the Stated
Maturity Date or such earlier or later date, as the
case may be, is referred to herein as the "Maturity
Date" with respect to the principal repayable on such
date).
If an Interest Payment Date or the Maturity Date with
respect to any Fixed Rate Note falls on a day that is
not a Business Day (as defined in the Prospectus), the
required payment to be made on such day need not be
made on such day, but may be made on the next
succeeding Business Day with the same
4
<PAGE>
force and effect as if made on such day, and no
interest shall accrue on such payment for the period
from and after such day to the next succeeding Business
Day. If an Interest Payment Date other than the
Maturity Date with respect to any Floating Rate Note
would otherwise fall on a day that is not a Business
Day, such Interest Payment Date will be postponed to
the next succeeding Business Day, except that in the
case of a Note for which LIBOR is an applicable
Interest Rate Basis, if such Business Day falls in the
next succeeding calendar month, such Interest Payment
Date will be the immediately preceding Business Day. If
the Maturity Date with respect to any Floating Rate
Note falls on a day that is not a Business Day, the
required payment to be made on such day need not be
made on such day, but may be made on the next
succeeding Business Day with the same force and effect
as if made on such day, and no interest shall accrue on
such payment for the period from and after the Maturity
Date to the next succeeding Business Day.
Regular Record Dates. Unless otherwise specified in
--------------------
the applicable Pricing Supplement, the "Regular Record
Date" for a Note shall be the date 15 calendar days
(whether or not a Business Day) preceding the
applicable Interest Payment Date.
Interest Payment Dates. Interest payments will be made
----------------------
on each Interest Payment Date commencing with the first
Interest Payment Date following the Original Issue
Date; provided, however, the first payment of interest
on any Note originally issued between a Regular Record
Date and an Interest Payment Date will occur on the
Interest Payment Date immediately following the next
succeeding Regular Record Date.
Unless otherwise specified in the applicable Pricing
Supplement, interest payments on Fixed Rate Notes will
be made semiannually in arrears on June 15 and December
15 of each year and on the Maturity Date, while
interest payments
5
<PAGE>
on Floating Rate Notes will be made as specified in the
applicable Pricing Supplement.
Acceptance and
Rejection of Offers
from Solicitation
as Agents: If agreed upon by any Agent and the Company, then such
Agent acting solely as agent for the Company and not as
principal will solicit purchases of the Notes. Each
Agent will communicate to the Company, orally or in
writing, each reasonable offer to purchase Notes
solicited by such Agent on an agency basis, other than
those offers rejected by such Agent. Each Agent has the
right, in its discretion reasonably exercised, to
reject any proposed purchase of Notes, as a whole or in
part, and any such rejection shall not be a breach of
such Agent's agreement contained in the Distribution
Agreement. The Company has the sole right to accept or
reject any proposed purchase of Notes, in whole or in
part, and any such rejection shall not constitute a
breach of the Company's agreement contained in the
Distribution Agreement. Each Agent has agreed to make
reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase
Notes has been solicited by such Agent and accepted by
the Company.
Preparation of
Pricing Supplement: If any offer to purchase a Note is accepted by the
Company, the Company will promptly prepare a Pricing
Supplement reflecting the terms of such Note.
Information to be included in the Pricing Supplement
shall include:
1. the name of the Company;
2. the title of the Notes;
3. the date of the Pricing Supplement and the date of
the Prospectus to which the Pricing Supplement
relates;
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<PAGE>
4. the name of the Offering Agent (as defined below);
5. whether such Notes are being sold to the Offering
Agent as principal or to an investor or other
purchaser through the Offering Agent acting as
agent for the Company;
6. with respect to Notes sold to the Offering Agent
as principal, whether such Notes will be resold by
the Offering Agent to investors and other
purchasers at (i) a fixed public offering price of
a specified percentage of their principal amount
or (ii) at varying prices related to prevailing
market prices at the time of resale to be
determined by the Offering Agent;
7. with respect to Notes sold to an investor or other
purchaser through the Offering Agent acting as
agent for the Company, whether such Notes will be
sold at (i) 100% of their principal amount or (ii)
a specified percentage of their principal amount;
8. the Offering Agent's discount or commission;
9. Net proceeds to the Company;
10. the Principal Amount, Specified Currency, Original
Issue Date, Stated Maturity Date, Interest Payment
Date(s), Authorized Denomination, Initial
Redemption Date, if any, Initial Redemption
Percentage, if any, Annual Redemption Percentage
Reduction, if any, Optional Repayment Date(s), if
any, Exchange Rate Agent, if any, and, in the case
of Fixed Rate Notes, the Interest Rate, and, in
the case of Floating Rate Notes, the Interest
Category, the Interest Rate Basis or Bases, Day
Count Convention, Index Maturity (if applicable),
Initial Interest Rate, if any, Maximum Interest
Rate, if any, Minimum Interest Rate, if any,
7
<PAGE>
Initial Interest Reset Date, Interest Reset Dates,
Spread and/or Spread Multiplier, if any, and
Calculation Agent, and, in the case of Discount
Notes, the Issue Price; and
11. any other additional provisions of the Notes
material to investors or other purchasers of the
Notes not otherwise specified in the Prospectus.
The Company shall send such Pricing Supplement by
telecopy or overnight express (for delivery by the
close of business on the applicable trade date, but in
no event later than 11:00 a.m., New York City time, on
the Business Day following the applicable trade date)
to the Agent which made or presented the offer to
purchase the applicable Note (in such capacity, the
"Offering Agent") and the Trustee at the following
applicable address: if to Merrill Lynch, Pierce, Fenner
& Smith Incorporated, to: Tritech Services, 40 Colonial
Drive, Piscataway, New Jersey 08854, Attention: Nachman
Kimerling/Final Private Placement Memorandum Unit,
(908) 885--2768, telecopier: (908) 885-2774/5/6, with a
copy of such Pricing Supplement to Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
World Financial Center, North Tower, 10th Floor, New
York, New York, 10281-1310, Attention: MTN Product
Management, (212) 449-7476, telecopier: (212) 449-2234;
if to Lehman Brothers Inc., c/o ADP, Prospectus
Services, 536 Broad Hollow Road, Melville, New York
11747, Attention: Mike Ward, (516) 254-7106,
telecopier: (516) 249-7942 and by hand to Lehman
Brothers Inc., 3 World Financial Center, 9th floor, New
York, New York 10285, Attention: Brunnie Vazquez, (212)
526-8400; if to J.P. Morgan Securities Inc., 60 Wall
Street, New York, New York 10260, Attention: Medium
Term Note Desk - 3rd Floor, Telephone No.: (212) 648-
0591, Telecopy No.: (212) 648-5907; if to UBS
Securities LLC, 229 Park Avenue, New York, New York
10171-0026, Attention: Richard Messina, (212) 821-4542,
Telecopy: (212) 821-3667; and if to the Trustee, to:
Bankers Trust Company, Four Albany Street, New York,
New York
8
<PAGE>
10006, Attention: Corporate Market Services,(212) 250-
6382, telecopier: (212) 250-6961. A copy of such
Pricing Supplement shall also be sent to Brown & Wood
llp, One World Trade Center - 57th Floor, New York, New
York 10048, Attention: Edward F. Petrosky, Esq.
In each instance that a Pricing Supplement is prepared,
the Offering Agent will provide a copy of such Pricing
Supplement to each investor or purchaser of the
relevant Notes or its agent. Pursuant to Rule 434
("Rule 434") of the Securities Act of 1933, as amended,
the Pricing Supplement may be delivered separately from
the Prospectus. Outdated Pricing Supplements (other
than those retained for files) will be destroyed.
Settlement: The receipt of immediately available funds by the
Company in payment for a Note and the authentication
and delivery of such Note shall, with respect to such
Note, constitute "settlement". Offers accepted by the
Company will be settled in three Business Days, or at
such time as the purchaser, the Offering Agent and the
Company shall agree, pursuant to the timetable for
settlement set forth in Parts II and III hereof under
"Settlement Procedure Timetable" with respect to Global
Notes and Certificated Notes, respectively (each such
date fixed for settlement is hereinafter referred to as
a "Settlement Date"). If procedures A and B of the
applicable Settlement Procedures with respect to a
particular offer are not completed on or before the
time set forth under the applicable "Settlement
Procedures Timetable", such offer shall not be settled
until the Business Day following the completion of
settlement procedures A and B or such later date as the
purchaser and the Company shall agree.
The foregoing settlement procedures may be modified
with respect to any purchase of Notes by an Agent as
principal if so agreed by the Company and such Agent.
9
<PAGE>
Procedure for Changing
Rates or Other
Variable Terms: When a decision has been reached to change the interest
rate or any other variable term on any Notes being sold
by the Company, the Company will promptly advise the
Agents and the Trustee by telephone and the Agents will
forthwith suspend solicitation of offers to purchase
such Notes. The Agents will telephone the Company with
recommendations as to the changed interest rates or
other variable terms. At such time as the Company
notifies the Agents and the Trustee of the new interest
rates or other variable terms, the Agents may resume
solicitation of offers to purchase such Notes. Until
such time, only "indications of interest" may be
recorded. Immediately after acceptance by the Company
of an offer to purchase Notes at a new interest rate or
new variable term, the Company, the Offering Agent and
the Trustee shall follow the procedures set forth under
the applicable "Settlement Procedures".
Suspension of
Solicitation;
Amendment or
Supplement: The Company may instruct the Agents to suspend
solicitation of offers to purchase Notes at any time.
Upon receipt of such instructions, the Agents will
forthwith suspend solicitation of offers to purchase
from the Company until such time as the Company has
advised the Agents that solicitation of offers to
purchase may be resumed. Any notice of an amendment or
supplement to the Registration Statement or the
Prospectus required to be given by the Company to the
Agents pursuant to the Distribution Agreement shall be
given as so required and any amendment or supplement to
the Registration Statement or the Prospectus required
to be delivered or mailed to the Agents pursuant to the
Distribution Agreement shall be delivered or mailed as
so required in quantities which such parties may
reasonably request at the following respective
addresses: if to
10
<PAGE>
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
World Financial Center, North Tower, 10th Floor, New
York, New York 10281-1310, Attention: MTN Product
Management, (212) 449-7476, telecopier: (212) 449-2234;
if to Lehman Brothers Inc., 3 World Financial Center,
12th floor, New York, New York 10285-1200, Attention:
Medium-Term Note Department,(212) 526-2040, telecopier:
(212) 528-1718; if to J.P. Morgan Securities Inc., 60
Wall Street, New York, New York 10260, Attention:
Medium Term Note Desk - 3rd Floor, Telephone No.:
(212) 648-0591, Telecopy No.: (212) 648-5907; if to
UBS Securities LLC, 299 Park Avenue, New York, New York
10171-0026, Attention: Richard Messina, (212)
821-4542, Telecopy: (212) 821-3667; and if to the
Trustee, to: Bankers Trust Company, Four Albany Street,
New York, New York 10006, Attention: Corporate Market
Services, (212) 250-6382, telecopier: (212) 250-6961.
One copy of such amendment or supplement shall be sent
to Brown & Wood llp, One World Trade Center -57th
Floor, New York, New York 10048, Attention: Edward F.
Petrosky, Esq.
In the event that at the time the solicitation of
offers to purchase from the Company is suspended (other
than to establish or change interest rates or
formulas, maturities, prices or other similar variable
terms with respect to the Notes) there shall be any
offers to purchase Notes that have been accepted by the
Company which have not been settled, the Company will
promptly advise the Offering Agent and the Trustee
whether such offers may be settled and whether copies
of the Prospectus as theretofore amended and/or
supplemented as in effect at the time of the suspension
may be delivered in connection with the settlement of
such offers. The Company will have the sole
responsibility for such decision and for any
arrangements which may be made in the event that the
Company determines that such offers may not be settled
or that copies of such Prospectus may not be so
delivered.
Delivery of Prospectus
and applicable
11
<PAGE>
Pricing Supplement: A copy of the most recent Prospectus and the applicable
Pricing Supplement, which pursuant to Rule 434 may be
delivered separately from the Prospectus, must
accompany or precede the earlier of (a) the written
confirmation of a sale sent to an investor or other
purchaser or its agent and (b) the delivery of Notes to
an investor or other purchaser or its agent.
Authenticity of
Signatures: The Agents will have no obligation or liability to the
Company or the Trustee in respect of the authenticity
of the signature of any officer, employee or agent of
the Company or the Trustee on any Note.
Documents Incorporated
by Reference: The Company shall supply the Agents with an adequate
supply of all documents incorporated by reference in
the Registration Statement and the Prospectus.
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in book-entry
form for eligibility in the book-entry system maintained by DTC, the Trustee
will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter
of Representations from the Company and the Trustee to DTC, dated December 5,
1996, and a Certificate Agreement, dated October 21, 1988, between the Trustee
and DTC, as amended (the "Certificate Agreement"), and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry form having
the same Original Issue Date, Specified Currency,
Interest Rate, Interest Payment Dates, redemption
and/or repayment terms, if any, and Stated Maturity
Date (collectively, the "Fixed Rate Terms") will be
represented initially by one or more Global Notes; and
all Floating Rate Notes issued in book-entry form
having the same Original Issue Date, Specified
Currency, Interest Category, formula for the
calculation of
12
<PAGE>
interest (including the Interest Rate Basis or Bases,
which may be the CD Rate, the CMT Rate, the Commercial
Paper Rate, the Eleventh District Cost of Funds Rate,
the Federal Funds Rate, LIBOR, the Prime Rate or the
Treasury Rate or any other interest rate basis or
formula, and Spread and/or Spread Multiplier, if any),
Day Count Convention, Initial Interest Rate, Index
Maturity (if applicable), Minimum Interest Rate, if
any, Maximum Interest Rate, if any, redemption and/or
repayment terms, if any, Interest Payment Dates,
Initial Interest Reset Date, Interest Reset Dates and
Stated Maturity Date(collectively, the "Floating Rate
Terms") will be represented initially by one or more
Global Notes.
For other variable terms with respect to the Fixed Rate
Notes and Floating Rate Notes, see the Prospectus and
the applicable Pricing Supplement.
Owners of beneficial interests in Global Notes will be
entitled to physical delivery of Certificated Notes
equal in principal amount to their respective
beneficial interests only upon certain limited
circumstances described in the Prospectus.
Identification: The Company has arranged with the CUSIP Service Bureau
of Standard & Poor's Corporation (the "CUSIP Service
Bureau") for the reservation of one series of CUSIP
numbers, which series consists of approximately 900
CUSIP numbers which have been reserved for and relate
to Global Notes and the Company has delivered to each
of the Trustee and DTC such list of such CUSIP numbers.
The Company will assign CUSIP numbers to Global Notes
as described below under Settlement Procedure B. DTC
will notify the CUSIP Service Bureau periodically of
the CUSIP numbers that the Company has assigned to
Global Notes. The Trustee will notify the Company at
any time when fewer than 100 of the reserved CUSIP
numbers remain unassigned to Global Notes, and, if it
deems necessary, the
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<PAGE>
Company will reserve and obtain additional CUSIP
numbers for assignment to Global Notes. Upon obtaining
such additional CUSIP numbers, the Company will deliver
a list of such additional numbers to the Trustee and
DTC. Notes issued in book-entry form in excess of
$200,000,000 (or the equivalent thereof in one or more
foreign or composite currencies) in aggregate principal
amount and otherwise required to be represented by the
same Global Note will instead be represented by two or
more Global Notes which shall all be assigned the same
CUSIP number.
Registration: Unless otherwise specified by DTC, each Global Note
will be registered in the name of Cede & Co., as
nominee for DTC, on the register maintained by the
Trustee under the Indenture. The beneficial owner of a
Note issued in book-entry form (i.e., an owner of a
----
beneficial interest in a Global Note) (or one or more
indirect participants in DTC designated by such owner)
will designate one or more participants in DTC (with
respect to such Note issued in book-entry form, the
"Participants") to act as agent for such beneficial
owner in connection with the book-entry system
maintained by DTC, and DTC will record in book-entry
form, in accordance with instructions provided by such
Participants, a credit balance with respect to such
Note issued in book-entry form in the account of such
Participants. The ownership interest of such
beneficial owner in such Note issued in book-entry form
will be recorded through the records of such
Participants or through the separate records of such
Participants and one or more indirect participants in
DTC.
Transfers: Transfers of beneficial ownership interests in a Global
Note will be accomplished by book entries made by DTC
and, in turn, by Participants (and in certain cases,
one or more indirect participants in DTC) acting on
behalf of beneficial transferors and transferees of
such Global Note.
14
<PAGE>
Exchanges: The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice specifying (a) the
CUSIP numbers of two or more Global Notes outstanding
on such date that represent Global Notes having the
same Fixed Rate Terms or Floating Rate Terms, as the
case may be (other than Original Issue Dates), and for
which interest has been paid to the same date; (b) a
date, occurring at least 30 days after such written
notice is delivered and at least 30 days before the
next Interest Payment Date for the related Notes issued
in book-entry form, on which such Global Notes shall be
exchanged for a single replacement Global Note; and (c)
a new CUSIP number, obtained from the Company, to be
assigned to such replacement Global Note. Upon receipt
of such a notice, DTC will send to its Participants
(including the Trustee) a written reorganization notice
to the effect that such exchange will occur on such
date. Prior to the specified exchange date, the
Trustee will deliver to the CUSIP Service Bureau
written notice setting forth such exchange date and the
new CUSIP number and stating that, as of such exchange
date, the CUSIP numbers of the Global Notes to be
exchanged will no longer be valid. On the specified
exchange date, the Trustee will exchange such Global
Notes for a single Global Note bearing the new CUSIP
number and the CUSIP numbers of the exchanged Notes
will, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned.
Notwithstanding the foregoing, if the Global Notes to
be exchanged exceed $200,000,000 (or the equivalent
thereof in one or more foreign or composite currencies)
in aggregate principal amount, one replacement Note
will be authenticated and issued to represent each
$200,000,000 (or the equivalent thereof in one or more
foreign or composite currencies) in aggregate principal
amount of the exchanged Global Notes and an additional
Global Note or Notes will be authenticated and issued
to represent any remaining principal
15
<PAGE>
amount of such Global Notes (See "Denominations"
below).
Denominations: Unless otherwise specified in the applicable Pricing
Supplement, Notes issued in book-entry form will be
issued in denominations of $1,000 and integral
multiples thereof. Each Global Note will be
denominated in an aggregate principal amount not in
excess of $200,000,000 (or the equivalent thereof in
one or more foreign or composite currencies). If one
or more Notes are issued in book-entry form having an
aggregate principal amount in excess of $200,000,000
(or the equivalent thereof in one or more foreign or
composite currencies) and would, but for the preceding
sentence, be represented by a single Global Note, then
one Global Note will be issued to represent each
$200,000,000 (or the equivalent thereof in one or more
foreign or composite currencies) in aggregate principal
amount of such Notes issued in book-entry form and an
additional Global Note will be issued to represent any
remaining aggregate principal amount of such Notes
issued in book-entry form. In such a case, each of the
Global Notes representing Notes issued in book-entry
form shall be assigned the same CUSIP number.
Payments of Principal
and Interest: Payments of Interest Only. Promptly after each Regular
-------------------------
Record Date, the Trustee will deliver to the Company
and DTC a written notice specifying by CUSIP number the
amount of interest to be paid on each Global Note on
the following Interest Payment Date (other than an
Interest Payment Date coinciding with the Maturity
Date) and the total of such amounts. DTC will confirm
the amount payable on each Global Note on such Interest
Payment Date by reference to the daily bond reports
published by Standard & Poor's Corporation. On such
Interest Payment Date, the Company will pay to the
Trustee in immediately available funds an amount
sufficient to pay the interest then due and owing on
the Global Notes, and upon receipt of
16
<PAGE>
such funds from the Company, the Trustee in turn will
pay to DTC such total amount of interest due on such
Global Notes (other than on the Maturity Date) which is
payable in U.S. dollars, at the times and in the manner
set forth below under "Manner of Payment". The Trustee
shall make payment of that amount of interest due and
owing on any Global Notes that Participants have
elected to receive in foreign or composite currencies
directly to such Participants.
Notice of Interest Rates. Promptly after each Interest
------------------------
Determination Date or Calculation Date, as the case may
be, for Floating Rate Notes issued in book-entry form,
the Trustee will notify each of Moody's Investors
Service, Inc. and Standard & Poor's Corporation of the
interest rates determined as of such Interest
Determination Date.
Payments at Maturity. On or about the first Business
--------------------
Day of each month, the Trustee will deliver to the
Company and DTC a written list of principal, premium,
if any, and interest to be paid on each Global Note
maturing or otherwise becoming due in the following
month. The Trustee, the Company and DTC will confirm
the amounts of such principal, premium, if any, and
interest payments with respect to each such Global Note
on or about the fifth Business Day preceding the
Maturity Date of such Global Note. On the Maturity
Date, the Company will pay to the Trustee in
immediately available funds an amount sufficient to
make the required payments, and upon receipt of such
funds the Trustee in turn will pay to DTC the principal
amount of Global Notes, together with premium, if any,
and interest due on the Maturity Date, which are
payable in U.S. dollars, at the times and in the manner
set forth below under "Manner of Payment". The Trustee
shall make payment of the principal, premium, if any,
and interest to be paid on the Maturity Date of each
Global Note that Participants have elected to receive
in foreign or composite currencies directly to such
17
<PAGE>
Participants. Promptly after (i) payment to DTC of the
principal, premium, if any, and interest due on the
Maturity Date of a Global Note payable in U.S. dollars
and (ii) payment of the principal, premium, if any, and
interest due on the Maturity Date of a Global Note to
those Participants who have elected to receive such
payments in foreign or composite currencies, the
Trustee will cancel such Global Note and deliver it to
the Company with an appropriate debit advice. On the
first Business Day of each month, the Trustee will
deliver to the Company a written statement indicating
the total principal amount of outstanding Global Notes
as of the close of business on the immediately
preceding Business Day.
Manner of Payment. The total amount of any principal,
-----------------
premium, if any, and interest due on Global Notes on
any Interest Payment Date or the Maturity Date, as the
case may be, which is payable in U.S. dollars shall be
paid by the Company to the Trustee in funds available
for use by the Trustee no later than 10:00 a.m., New
York City time, on such date. The Company will make
such payment on such Global Notes to an account
specified by the Trustee. Upon receipt of such funds,
the Trustee will pay by separate wire transfer (using
Fedwire message entry instructions in a form previously
specified by DTC) to an account at the Federal Reserve
Bank of New York previously specified by DTC, in funds
available for immediate use by DTC, each payment in
U.S. dollars of principal, premium, if any, and
interest due on Global Notes on such date. Thereafter
on such date, DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in
funds available for immediate use to the respective
Participants in whose names the beneficial interests in
such Global Notes are recorded in the book-entry system
maintained by DTC. Neither the Company nor the Trustee
shall have any responsibility or liability for the
payment in U.S. dollars by DTC of the
18
<PAGE>
principal of, or premium, if any, or interest on, the
Global Notes. The Trustee shall make all payments of
principal, premium, if any, and interest on each Global
Note that Participants have elected to receive in
foreign or composite currencies directly to such
Participants.
Withholding Taxes. The amount of any taxes required
-----------------
under applicable law to be withheld from any interest
payment on a Global Note will be determined and
withheld by the Participant, indirect participant in
DTC or other Person responsible for forwarding payments
and materials directly to the beneficial owner of such
Global Note.
Settlement
Procedures: Settlement Procedures with regard to each Note in book-
entry form sold by an Agent, as agent of the Company,
or purchased by an Agent, as principal, will be as
follows:
A. The Offering Agent will advise the Company by
telephone, confirmed by facsimile, of the following
settlement information:
1. Principal Amount, Authorized Denomination and
Specified Currency.
2. Exchange Rate Agent, if any.
3. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis or Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread Multiplier,
if any.
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(v) Initial Interest Reset Date or
Interest Reset Dates.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum Interest
Rates, if any.
(ix) Day Count Convention.
(x) Calculation Agent.
(c) Discount Notes:
(i) Issue Price
4. Price to public of such Note or whether such
Note is being offered at varying prices
relating to prevailing market prices at time of
resale as determined by the Offering Agent.
5. Trade Date.
6. Settlement Date (Original Issue Date).
7. Stated Maturity Date.
8. Whether the Company has the option to extend
the Stated Maturity Date of the Note, and, if
so the final Maturity Date.
9. Redemption provisions, if any.
10. Repayment provisions, if any.
11. Net proceeds to the Company.
12. The Offering Agent's discount or commission.
13. Whether such Note is being sold to the Offering
Agent as principal or to an investor or other
purchaser through the Offering Agent acting as
agent for the Company.
14. Such other information specified with respect
to such Note (whether by Addendum or
otherwise).
20
<PAGE>
B. The Company will assign a CUSIP number to the Global
Note representing such Note and then advise the
Trustee by facsimile transmission or other
electronic transmission of the above settlement
information received from the Offering Agent, such
CUSIP number and the name of the Offering Agent. The
Company will also advise the Offering Agent of the
CUSIP number assigned to the Global Note.
C. The Trustee will communicate to DTC and the Offering
Agent through DTC's Participant Terminal System a
pending deposit message specifying the following
settlement information:
1. The information set forth in the Settlement
Procedure A.
2. Identification numbers of the participant
accounts maintained by DTC on behalf of the
Trustee and the Offering Agent.
3. Identification of the Global Note as a Fixed
Rate Global Note or Floating Rate Global Note.
4. Initial Interest Payment Date for such Note,
number of days by which such date succeeds the
related record date for DTC purposes (or, in
the case of Floating Rate Notes which reset
daily or weekly, the date five calendar days
preceding the Interest Payment Date) and, if
then calculable, the amount of interest payable
on such Interest Payment Date (which amount
shall have been confirmed by the Trustee).
5. CUSIP number of the Global Note representing
such Note.
6. Whether such Global Note represents any other
Notes issued or to be issued in book-entry
form.
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<PAGE>
DTC will arrange for each pending deposit message
described above to be transmitted to Standard &
Poor's Corporation, which will use the information
in the message to include certain terms of the
related Global Note in the appropriate daily bond
report published by Standard & Poor's Corporation.
D. The Trustee will complete and authenticate the
Global Note representing such Note.
E. DTC will credit such Note to the participant
account of the Trustee maintained by DTC.
F. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to the
Trustee's participant account and credit such Note
to the participant account of the Offering Agent
maintained by DTC and (ii) to debit the settlement
account of the Offering Agent and credit the
settlement account of the Trustee maintained by
DTC, in an amount equal to the price of such Note
less such Offering Agent's discount or underwriting
commission, as applicable. Any entry of such a
deliver order shall be deemed to constitute a
representation and warranty by the Trustee to DTC
that (i) the Global Note representing such Note has
been issued and authenticated and (ii) the Trustee
is holding such Global Note pursuant to the
Certificate Agreement.
G. In the case of Notes in book-entry form sold
through the Offering Agent, as agent, the Offering
Agent will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC
(i) to debit such Note to the Offering Agent's
participant account and credit such Note to the
participant account of the Participants maintained
by DTC and (ii) to debit the settlement
22
<PAGE>
accounts of such Participants and credit the
settlement account of the Offering Agent maintained
by DTC in an amount equal to the initial public
offering price of such Note.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures F and G
will be settled in accordance with SDFS operating
procedures in effect on the Settlement Date.
I. Upon receipt, the Trustee will pay the Company, by
wire transfer of immediately available funds to an
account specified by the Company to the Trustee
from time to time, the amount transferred to the
Trustee in accordance with Settlement Procedure F.
J. The Trustee will send a copy of the Global Note by
first class mail to the Company and, at the request
of the Company, a statement setting forth the
principal amount of Notes Outstanding as of the
related Settlement Date after giving effect to such
transaction and all other offers to purchase Notes
of which the Company has advised the Trustee but
which have not yet been settled.
K. If such Note was sold through the Offering Agent,
as agent, the Offering Agent will confirm the
purchase of such Note to the investor or other
purchaser either by transmitting to the Participant
with respect to such Note a confirmation order
through DTC's Participant Terminal System or by
mailing a written confirmation to such investor or
other purchaser.
Settlement Procedures
Timetable: For offers to purchase Notes accepted by the Company,
Settlement Procedures A through K set forth above shall
be completed as soon as possible following the trade
but not later than the respective times (New York City
time) set forth below:
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Settlement
Procedure Time
---------- ----
A 11:00 a.m. on the trade date or within one
hour following the trade
B 12:00 noon on the trade date or within one
hour following the trade
C No later than the close of business on the
trade date
D 9:00 a.m. on Settlement Date
E 10:00 a.m. on Settlement Date
F-G No later than 2:00 p.m. on Settlement Date
H 4:00 p.m. on Settlement Date
I-K 5:00 p.m. on Settlement Date
Settlement Procedure H is subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in the SDFS
operating procedures in effect on the Settlement Date.
If settlement of a Note issued in book-entry form is
rescheduled or canceled, the Trustee will deliver to
DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later than
2:00 p.m., New York City time, on the Business Day
immediately preceding the scheduled Settlement Date.
Failure to Settle: If the Trustee fails to enter an SDFS deliver order
with respect to a Note issued in book-entry form
pursuant to Settlement Procedure F, the Trustee may
deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal message
instructing DTC to debit such Note to the participant
account of the Trustee maintained at DTC. DTC will
process the withdrawal message, provided that such
participant account contains a principal amount of the
Global Note representing such Note that is at least
equal to the
24
<PAGE>
principal amount to be debited. If withdrawal messages
are processed with respect to all the Notes represented
by a Global Note, the Trustee will mark such Global
Note "canceled", make appropriate entries in its
records and send certification of destruction of such
canceled Global Note to the Company. The CUSIP number
assigned to such Global Note shall, in accordance with
CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. If withdrawal messages are
processed with respect to a portion of the Notes
represented by a Global Note, the Trustee will exchange
such Global Note for two Global Notes, one of which
shall represent the Global Notes for which withdrawal
messages are processed and shall be canceled
immediately after issuance and the other of which shall
represent the other Notes previously represented by the
surrendered Global Note and shall bear the CUSIP number
of the surrendered Global Note.
In the case of any Note in book-entry form sold through
the Offering Agent, as agent, if the purchase price for
any such Note is not timely paid to the Participants
with respect thereto by the beneficial investor or
other purchaser thereof (or a person, including an
indirect participant in DTC, acting on behalf of such
investor or other purchaser), such Participants and, in
turn, the related Offering Agent may enter SDFS deliver
orders through DTC's Participant Terminal System
reversing the orders entered pursuant to Settlement
Procedures F and G, respectively. Thereafter, the
Trustee will deliver the withdrawal message and take
the related actions described in the preceding
paragraph. If such failure shall have occurred for any
reason other than default by the Offering Agent to
perform its obligations hereunder or under the
Distribution Agreement, the Company will reimburse such
Offering Agent on an equitable basis for its loss of
the use of funds during the period when the
25
<PAGE>
funds were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Note in book-entry form, DTC
may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of a
failure to settle with respect to a Note that was to
have been represented by a Global Note also
representing other Notes, the Trustee will provide, in
accordance with Settlement Procedure D, for the
authentication and issuance of a Global Note
representing such remaining Notes and will make
appropriate entries in its records.
PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations: Unless otherwise specified in the applicable Pricing
Supplement, the Certificated Notes will be issued in
denominations of $1,000 and integral multiples thereof.
Payments of Principal,
Premium, if any,
and Interest: Upon presentment and delivery of the Certificated Note,
the Trustee upon receipt of immediately available funds
from the Company will pay the principal of, and
premium, if any, and interest on, each Certificated
Note on the Maturity Date in immediately available
funds. All interest payments on a Certificated Note,
other than interest due on the Maturity Date, will be
made by check mailed to the address of the person
entitled thereto as such address shall appear in the
Security Register; provided, however, that Holders of
$10,000,000 (or, if the applicable Specified Currency
is other than United States dollars, the equivalent
thereof in such Specified Currency) or more in
aggregate principal amount of Certificated Notes
(whether having identical or different terms and
provisions) shall be entitled to receive such interest
payments by wire transfer
26
<PAGE>
of immediately available funds if appropriate wire
transfer instructions have been received in writing by
the Trustee not less than 15 calendar days prior to the
applicable Interest Payment Date.
The Trustee will provide monthly to the Company a list
of the principal, premium, if any, and interest to be
paid on Certificated Notes maturing in the next
succeeding month. The Trustee will be responsible for
withholding taxes on interest paid as required by
applicable law.
Certificated Notes presented to the Trustee on the
Maturity Date for payment will be canceled by the
Trustee. All canceled Certificated Notes held by the
Trustee shall be destroyed, and the Trustee shall
furnish to the Company a certificate with respect to
such destruction.
Settlement
Procedures: Settlement Procedures with regard to each Certificated
Note purchased by an Agent, as principal, or through an
Agent, as agent, shall be as follows:
A. The Offering Agent will advise the Company by
telephone of the following Settlement information
with regard to each Certificated Note:
1. Exact name in which the Certificated Note(s) is
to be registered (the "Registered Owner").
2. Exact address or addresses of the Registered
Owner for delivery, notices and payments of
principal, premium, if any, and interest.
3. Taxpayer identification number of the
Registered Owner.
4. Principal Amount, Authorized Denomination and
Specified Currency.
27
<PAGE>
5. Exchange Rate Agent, if any.
6. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(iii) Whether such Note is being
issued with Original Issue
Discount and, if so, the terms
thereof.
(b) Floating Rate Notes:
(i) Interest Category.
(ii) Interest Rate Basis or Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread Multiplier,
if any.
(v) Initial Interest Reset Date and
Interest Reset Dates.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum
Interest Rates, if any.
(ix) Day Count Convention.
(x) Calculation Agent.
7. Price to public of such Note or whether such
Note is being offered at varying prices
relating to prevailing market prices at time of
resale as
28
<PAGE>
determined by the Offering Agent.
8. Trade Date.
9. Settlement Date (Original Issue Date).
10. Stated Maturity Date.
11. Whether the Company has the option to extend
the Stated Maturity Date of the Note, and,
if so the final Maturity Date.
12. Redemption provisions, if any.
13. Repayment provisions, if any.
14. Net proceeds to the Company.
15. The Offering Agent's discount or commission.
16. Whether such Note is being sold to the Offering
Agent as principal or to an investor or other
purchaser through the Offering Agent acting as
agent for the Company.
17. Such other information specified with respect
to such Note (whether by Addendum or
otherwise).
B. After receiving such settlement information from
the Offering Agent, the Company will advise the
Trustee of the above settlement information by
facsimile transmission confirmed by telephone. The
Company will cause the Trustee to issue,
authenticate and deliver the Certificated Note.
C. The Trustee will complete the Certificated Note in
the form approved by the Company and the Offering
Agent, and will make three copies thereof (herein
called "Stub 1", "Stub 2" and "Stub 3"):
1. Certificated Note with the Offering Agent's
confirmation, if traded on a principal basis,
or the Offering Agent's customer confirmation,
if traded on an agency basis.
29
<PAGE>
2. Stub 1 for Trustee.
3. Stub 2 for Offering Agent.
4. Stub 3 for the Company.
D. With respect to each trade, the Trustee will
deliver the Certificated Note and Stub 2 thereof to
the Offering Agent at the following applicable
address: if to Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Merrill Lynch Money Markets
Clearance, 55 Water Street, Concourse Level,
N.S.C.C. Window, New York, New York 10041,
Attention: Al Mitchell, (212) 558-2405,
telecopier: (212) 558-2457; if to Lehman Brothers
Inc., to Chemical Bank, 4 New York Plaza, Ground
Floor, Receive Window, FAO Lehman Brothers, New
York, New York, Attention: Jennifer Jones,(212)
623-5953; if to J.P. Morgan Securities Inc.,
NSCC-NY Window, 55 Water Street - Concourse Level,
New York, New York 10041, Attention: Bill Davis;
and if to UBS Securities LLC, 299 Park Avenue,
New York, New York 10171-0026, Attention: Richard
Messina, (212) 821-4542, Telecopy: (212) 821-3667.
The Trustee will keep Stub 1. The Offering Agent
will acknowledge receipt of the Certificated Note
through a broker's receipt and will keep Stub 2.
Delivery of the Certificated Note will be made only
against such acknowledgment of receipt. Upon
determination that the Certificated Note has been
authorized, delivered and completed as
aforementioned, the Offering Agent will wire the
net proceeds of the Certificated Note after
deduction of its applicable commission to the
Company pursuant to standard wire instructions
given by the Company.
E. In the case of a Certificated Note sold through the
Offering Agent, as agent, the Offering Agent will
deliver such Certificated Note (with the
confirmation) to the purchaser against payment in
immediately available funds.
30
<PAGE>
F. The Trustee will send Stub 3 to the Company.
Settlement
Procedures
Timetable: For offers to purchase Certificated Notes accepted by
the Company, Settlement Procedures A through F set
forth above shall be completed as soon as possible
following the trade but not later than the respective
times (New York City time) set forth below:
Settlement
Procedure Time
---------- ----
A 11:00 a.m. on the trade date or within
one hour following the trade
B 12:00 noon on the trade date or within
one hour following the trade
C-D 2:15 p.m. on Settlement Date
E 3:00 p.m. on Settlement Date
F 5:00 p.m. on Settlement Date
Failure to Settle: In the case of Certificated Notes sold through the
Offering Agent, as agent, if an investor or other
purchaser of a Certificated Note from the Company shall
either fail to accept delivery of or fail to make
payment for such Certificated Note on the date fixed
for settlement, the Offering Agent will forthwith
notify the Trustee and the Company by telephone,
confirmed in writing, and return such Certificated Note
to the Trustee.
The Trustee, upon receipt of such Certificated Note
from the Offering Agent, will immediately advise the
Company and the Company will promptly arrange to credit
the account of the Offering Agent in an amount of
immediately available funds equal to the amount
previously paid to the Company by such Offering Agent
in settlement for such Certificated Note. Such credits
will be made on the Settlement Date if possible, and in
any event not later
31
<PAGE>
than the Business Day following the Settlement Date;
provided that the Company has received notice on the
same day. If such failure shall have occurred for any
reason other than default by the Offering Agent to
perform its obligations hereunder or under the
Distribution Agreement, the Company will reimburse such
Offering Agent on an equitable basis for its loss of
the use of funds during the period when the funds were
credited to the account of the Company. Immediately
upon receipt of the Certificated Note in respect of
which the failure occurred, the Trustee will cancel and
destroy such Certificated Note, make appropriate
entries in its records to reflect the fact that such
Certificated Note was never issued, and accordingly
notify in writing the Company.
32
<PAGE>
EXHIBIT B
OFFICERS' CERTIFICATE
We, Howard B. Nelson, Jr., Senior Vice President, Chief Operating Officer
and Assistant Secretary, and Douglas B. Nunnelley, Senior Vice President, Chief
Financial Officer and Assistant Secretary of Colonial Properties Holding
Company, Inc., the General Partner (the "General Partner") of Colonial Realty
Limited Partnership (the "Operating Partnership"), pursuant to Section 301 of
the Indenture dated as of July 22, 1996 between the Operating Partnership and
Bankers Trust Company, as Trustee (the "Indenture"), hereby certify that a
series of Securities with the following terms has been established by a Board
Resolution (the "Securities"), and we further certify as follows with respect to
the Securities (unless otherwise defined herein, capitalized terms shall have
the meanings set forth in the Indenture):
1. the title of the Securities shall be "Medium-Term Notes Due Nine Months
or More From Date of Issue." The Securities shall constitute a series
of Securities as defined in the Indenture. Unless otherwise specified
in the directions or instructions referred to in paragraph 15 of this
Officers' Certificate, the Securities shall be issuable as Registered
Securities in permanent global form only in denominations of $1,000 or
any integral multiple thereof pursuant to the terms of that certain
Distribution Agreement of even date among the Operating Partnership,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Lehman Brothers Inc., J.P. Morgan Securities Inc. and
UBS Securities LLC (the "Distribution Agreement"), including the
Administrative Procedures attached as Exhibit B to the Distribution
Agreement (the "Administrative Procedures"), and any terms agreement
entered into pursuant to the Distribution Agreement, and pursuant to
the terms of the Operating Partnership's base Prospectus dated
December 6, 1996 (the "Base Prospectus"), as supplemented by the
Operating Partnership's Prospectus Supplement dated December 6, 1996
(the "Prospectus Supplement"), as supplemented by any pricing
supplement applicable to a particular issuance of Securities;
2. the maximum aggregate principal amount of Securities that may be
authenticated and delivered under the Indenture shall be $370,000,000
or the equivalent thereof in one or more foreign or composite
currencies (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of other
Securities pursuant to Section 304, 305, 306, 906, 1107 or 1305 of the
Indenture);
<PAGE>
3. the principal of (and premium or Make-Whole Amount, if any) or
interest, if any on the Securities shall be payable on such dates and
in such currencies (if other than Dollars) and with reference to such
indices, formulae or other methods, if any, specified in the
directions or instructions referred to in paragraph 15 of this
Officers' Certificate, subject to the provisions of the Indenture;
4. interest will accrue from the date of issuance, unless otherwise
specified in the applicable directions or instructions referred to in
paragraph 15 of this Officers' Certificate. The Securities will bear
interest at a rate of interest determined upon their issuance in
accordance with, and payable as set forth in, the related Form of Note
or the directions or instructions referred to in paragraph 15 of this
Officers' Certificate. The Securities will initially bear interest at
the rate specified in, or determined in accordance with the manner
specified in, the related Form of Note or the directions or
instructions referred to in paragraph 15 of this Officers'
Certificate;
5. unless otherwise specified in the related Form of Note or the
directions or instructions referred to in paragraph 15 of this
Officers' Certificate, the Securities are not subject to redemption
through the operation of a sinking fund or other analogous fund or
otherwise;
6. the Corporate Trust Office of Bankers Trust Company is appointed the
principal paying agent, transfer agent, and registrar for the
Securities and for the purpose mentioned in Section 1002 of the
Indenture. The Securities may be presented for payment at maturity at
such Corporate Trust Office, or at any other agency as may be
appointed by the Operating Partnership from time to time in The City
of New York;
7. the provisions of Sections 1402 and 1403 of the Indenture with regard
to defeasance and discharge and covenant defeasance, respectively,
shall be applicable to the Securities without modification;
8. except under the limited circumstances described in the Prospectus
Supplement under the caption "Description of the Securities--Book
Entry Notes," the Securities will be represented by one or more Global
Notes;
9. the Securities shall be subject to the transfer restrictions described
under the caption "Description of the Securities--
2
<PAGE>
Denomination, Interest, Registration and Transfer" in the Base
Prospectus;
10. the Securities shall be subject to the following Events of Default:
(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security or of any coupon
appertaining thereto, when such interest , Additional Amounts or
coupon becomes due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of (or premium or Make-
Whole Amount, if any, on) any Security when it becomes due and
payable at its Maturity or in connection with any redemption,
repayment, acceleration of maturity or otherwise; or
(3) default in the performance, or breach, of any covenant or
warranty of the Operating Partnership in the Indenture with
respect to any Security (other than a covenant or warranty a
default in whose performance or whose breach is specifically
dealt with in Section 501 of the Indenture), and continuance of
such default or breach for a period of 60 days after there has
been given, by registered or certified mail to the 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 Securities, a written notice specifying such
default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" under the Indenture; or
(4) a default under any bond, debenture, note or other evidence of
indebtedness of the Operating Partnership (other than
indebtedness as to which recourse is limited to some or all of
the assets of the Operating Partnership), or under any mortgage,
indenture or other instrument of the Operating Partnership
(including a default with respect to Debt Securities of any
series other than the Securities) under which there may be issued
or by which there may be secured any such indebtedness of the
Operating Partnership (or by any Subsidiary, the repayment of
which the Operating Partnership has guaranteed or for which the
Operating Partnership is directly responsible or liable as
obligor or guarantor on a full recourse basis) whether such
indebtedness now exists or shall hereafter be created, which
default shall constitute a failure to pay an aggregate principal
amount exceeding $10,000,000 of such indebtedness when due and
payable after the expiration of any applicable grace period
3
<PAGE>
with respect thereto and shall have resulted in such indebtedness
in an aggregate principal amount exceeding $10,000,000 becoming
or being declared due and payable prior to the date on which it
would otherwise have become due and payable, without such
indebtedness having been discharged, or such acceleration having
been rescinded or annulled, within a period of 10 days after
there shall have been given, by registered or certified mail, to
the Operating Partnership by the Trustee or to the Operating
Partnership and the Trustee by the Holders of at least 10% in
principal amount of the outstanding Securities a written notice
specifying such default and requiring the Operating Partnership
to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that such
notice is a "Notice of Default" under the Indenture; or
(5) the Operating Partnership or any Significant Subsidiary pursuant
to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
or
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Operating Partnership or any
Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of the Operating Partnership or any
Significant Subsidiary or for all or substantially all of
either of its property, or
(C) orders the liquidation of the Operating Partnership or any
Significant Subsidiary, and the order or decree remains
unstayed and in effect for 90 days; or
(7) any other Event of Default provided with respect to the
Securities.
4
<PAGE>
11. the Securities shall have such other terms and conditions as are
set forth in the related Form of Note or the directions or
instructions referred to in paragraph 15 of this Officers'
Certificate. The Securities shall be subject to the provisions of
the Indenture;
12. attached as Exhibit A is a form of floating rate Note, and
attached as Exhibit B is a form of fixed rate Note (each,
a "Form of Note"), both of which are in the form hereby approved
pursuant to authority granted by the Board of Directors of the
General Partner;
13. each request from the Operating Partnership at or subsequent to
the date of this Certificate that the Trustee authenticate and
deliver Securities will constitute a representation and warranty
as of the date of such request that all representations and
warranties contained in this Officers' Certificate or any other
certificate delivered to the Trustee in connection with the
designation of the terms of the Securities are true and correct
as if made on such date;
14. in accordance with the terms of the Administrative Procedures,
the Operating Partnership may request from time to time that the
Trustee authenticate and deliver Securities up to an aggregate
principal amount of $370,000,000, having such terms and
conditions as are specified at the time of such request;
15. in authenticating and delivering any Securities, the Trustee is
authorized to rely on the directions or instructions, written,
electronic, or oral (with written confirmation, including the
related Pricing Supplement, Form of Note, or written terms
agreement, of Thomas H. Lowder, or of any person or persons
designated by him in writing, each of whom has been authorized by
the Board of Directors of the General Partner to establish the
terms of the Securities.
This Certificate is delivered pursuant to the provisions of Sections
201, 301, and 303 of the Indenture. The undersigned hereby certify as follows:
(a) we have read each of the Sections of the Indenture
referred to above;
(b) we have examined the Indenture, the Forms of
Note, and certain resolutions of the Executive
Committee of the Board of Directors of Colonial
5
<PAGE>
Properties Holding Company, Inc. ("CPHC")
adopted at a meeting on September 10, 1996,
certain resolutions of the Board of Directors
of CPHC adopted at a meeting held on October 24,
1996, and certain resolutions of the Pricing
Committee of CPHC adopted by written consent on
December 5, 1996 relating to the Securities, and
such other documents, records, and instruments as
we have deemed necessary for purposes of giving
this certificate;
(c) to the best of our knowledge, no Event of Default
with respect to the Securities has occurred and is
continuing;
(d) in our opinion, we have made such examination
and investigation as is necessary to enable us to
express an informed opinion as to whether the
conditions precedent to the issuance of the
Securities have been complied with; and
(e) in our opinion, the conditions precedent to the
issuance of the Securities have been complied with.
Dated: December ___, 1996 Colonial Realty Limited Partnership
by: Colonial Properties Holding
Company, Inc.
by:
------------------------------------
Howard B. Nelson, Jr.
Senior Vice President,
Chief Operating Officer and
Assistant Secretary
by:
------------------------------------
Douglas B. Nunnelley
Senior Vice President,
Chief Financial Officer and
Assistant Secretary
6
<PAGE>
EXHIBIT A
---------
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTEHR
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN./1/
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./2/
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. FLR-___ ______________ ________________
COLONIAL REALTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Page: Designated CMT Telerate Page:
[ ] LIBOR Telerate Page If Telerate Page 7052:
Page: [ ] Weekly Average
Designated LIBOR Currency: [ ] Monthly Average
Designated CMT Maturity Index:
INTEREST PAYMENT
INDEX MATURITY: INITIAL INTEREST RATE: % DATE(S):
SPREAD (PLUS OR SPREAD MULTIPLIER: INITIAL INTEREST
MINUS): RESET DATE:
MINIMUM INTEREST RATE: % MAXIMUM INTEREST RATE: % INTEREST RESET
DATE(S):
- ------------------------
/1/ This paragraph applies to Global Notes only.
/2/ This paragraph applies to Global Notes only.
<PAGE>
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE REDUCTION: %
OPTIONAL REPAYMENT CALCULATION AGENT: [ ] CHECK IF A DISCOUNT NOTE
DATE(S):
Issue Price: %
INTEREST CATEGORY: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate Note from to .
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: % from to .
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the period
Fixed Interest Rate: % from to .
Applicable Interest Rate Basis:
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION:
[ ] United States dollars [ ] $1,000 and integral multiples
[ ] Other: thereof
[ ] Other:
EXCHANGE RATE AGENT:
ADDENDUM ATTACHED
[ ] Yes
[ ] No
OTHER/ADDITIONAL PROVISIONS:
2
<PAGE>
COLONIAL REALTY LIMITED PARTNERSHIP, a Delaware limited partnership (the
"Company", which terms include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
__________________, or registered assigns, the Principal Amount of
________________, on the Stated Maturity Date specified above (or any Redemption
Date or Repayment Date, each as defined on the reverse hereof, or any earlier
date of acceleration of maturity) (each such date being hereinafter referred to
as the "Maturity Date" with respect to the principal repayable on such date) and
to pay interest thereon (and on any overdue principal, premium, and/or interest
to the extent legally enforceable), at a rate per annum equal to the Initial
Interest Rate specified above until the Initial Interest Reset Date specified
above and thereafter at a rate determined in accordance with the provisions
specified above and on the reverse hereof or in an Addendum hereto with respect
to one or more Interest Rate Bases specified above until the principal hereof is
paid or duly made available for payment. The Company 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 next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date next succeeding the
Original Issue Date to the Holder (as defined below) of this Note on the Record
Date with respect to such second Interest Payment Date.
Interest on this Note 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 (each, an "Interest Period"). 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 (the "Holder") in whose name this Note (or one or more predecessor
Notes) is registered at the close of business on the fifteenth calendar day
(whether or not a Business Day, as defined on the reverse hereof) immediately
preceding such Interest Payment Date (the "Record Date"); provided, however,
-------- -------
that interest payable on the Maturity Date will be payable to the person to whom
the principal hereof and premium, if any, hereon shall be payable. Any interest
not so punctually paid or duly provided for ("Defaulted Interest") on any
Interest Payment Date other than the Maturity Date will forthwith cease to be
payable to the Holder on any Record Date, and shall be paid to the person in
whose name this Note is registered at the close of business on a special record
date (the "Special Record Date") for the payment of such Defaulted Interest to
be fixed by the Trustee hereinafter referred to, written notice whereof shall be
given to the Holder of this Note 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 Note may be listed, and upon
3
<PAGE>
such notice as may be required by such exchange, all as more fully provided for
in the Indenture.
Payment of principal, premium, if any, and interest in respect of this Note
due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, upon submission of a duly completed election form as
contemplated on the reverse hereof) 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 Four Albany Street, New York, New York 10006, or at such
other paying agency in the Borough of Manhattan, The City of New York, as the
Company may determine; provided, however, that if the Specified Currency
-------- -------
specified above is other than United States dollars and such payment is to be
made in the Specified Currency in accordance with the provisions set forth
below, such payment will be made by wire transfer of immediately available funds
to an account with a bank designated by the Holder hereof at least 15 calendar
days prior to the Maturity Date, provided that such bank has appropriate
facilities therefor and that this Note (and, if applicable, upon a submission of
a duly completed repayment election form) is presented and surrendered at the
aforementioned office of the Trustee in time for the Trustee to make such
payment in such funds in accordance with its normal procedures. Payment of
interest due on any Interest Payment Date other than the Maturity Date will be
made by check mailed to the address of the person entitled thereto as such
address shall appear in the Security Register maintained at the aforementioned
office of the Trustee; provided, however, that a Holder of U.S.$10,000,000 (or,
-------- -------
if the Specified Currency is other than United States dollars, the equivalent
thereof in the Specified Currency) or more in aggregate principal amount of
Notes (whether having identical or different terms and provisions) 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.
If any Interest Payment Date other than the Maturity Date would otherwise be
a day that is not a Business Day, then, notwithstanding any contrary provision
in the Indenture, such Interest Payment Date shall be postponed to the next
succeeding Business Day, except that if LIBOR is an applicable Interest Rate
Basis and such Business Day falls in the next succeeding calendar month, such
Interest Payment Date shall be the immediately preceding Business Day. If the
Maturity Date falls on a day that is not a Business Day, the required payment of
principal, premium, if any, and interest shall be made on the next succeeding
Business Day with the same force and effect as if made on the date such payment
was due, and no interest shall accrue with respect to such payment for the
period from and after the Maturity Date to the date of such payment on the next
succeeding Business Day.
4
<PAGE>
The Company is obligated to make payment of principal, premium, if any, and
interest in respect of this Note in the Specified Currency (or, if the Specified
Currency is not at the time of such payment legal tender for the payment of
public and private debts, in such other coin or currency of the country which
issued the Specified Currency as at the time of such payment is legal tender for
the payment of such debts). If the Specified Currency is other than United
States dollars, except as otherwise provided below, any such amounts so payable
by the Company will be converted by the Exchange Rate Agent specified above into
United States dollars for payment to the Holder of this Note.
If the Specified Currency is other than United States dollars, the Holder of
this Note may elect to receive any amount payable hereunder in such Specified
Currency. If the Holder of this Note shall not have duly made an election to
receive all or a specified portion of any payment of principal, premium, if any,
and/or interest in respect of this Note in the Specified Currency, any United
States dollar amount to be received by the Holder of this Note will be based on
the highest bid quotation in The City of New York received by the Exchange Rate
Agent at approximately 11:00 A.M., New York City time, on the second Business
Day preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Company for the purchase by the quoting dealer of
the Specified Currency for United States dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to all Holders of
Notes scheduled to receive United States dollar payments and at which the
applicable dealer commits to execute a contract. All currency exchange costs
will be borne by the Holder of this Note by deductions from such payments. If
three such bid quotations are not available, payments on this Note will be made
in the Specified Currency.
If the Specified Currency is other than United States dollars, the Holder of
this Note may elect to receive all or a specified portion of any payment of
principal, premium, if any, and/or interest in respect of this Note in the
Specified Currency by submitting a written request for such payment to the
Trustee at its corporate trust office in The City of New York on or prior to the
applicable Record Date or at least 15 calendar days prior to the Maturity Date,
as the case may be. Such written request may be mailed or hand delivered or
sent by cable, telex or other form of facsimile transmission. The Holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a composite
currency and the Holder of this Note shall
5
<PAGE>
have duly made an election to receive all or a specified portion of any payment
of principal, premium, if any, and/or interest in respect of this Note in the
Specified Currency, but the Specified Currency is not available due to the
imposition of exchange controls or other circumstances beyond the control of the
Company, the Company will be entitled to satisfy its obligations to the Holder
of this Note by making such payment in United States dollars on the basis of the
Market Exchange Rate (as defined below) determined by the Exchange Rate Agent on
the second Business Day prior to such payment date or, if such Market Exchange
Rate is not then available, on the basis of the most recently available Market
Exchange Rate. The "Market Exchange Rate" for the Specified Currency means the
noon dollar buying rate in The City of New York for cable transfers for the
Specified Currency as certified for customs purposes (or if not so certified, as
otherwise determined) by the Federal Reserve Bank of New York. Any payment made
in United States dollars under such circumstances will not constitute an Event
of Default as established for this Note in accordance with the terms of the
Indenture.
If the Specified Currency is a composite currency and the Holder of this
Note shall have duly made an election to receive all or a specified portion of
any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency, but such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Company, then the Company will be entitled to satisfy its obligations to
the Holder of this Note by making such payment in United States dollars. The
amount of each payment in United States dollars shall be computed by the
Exchange Rate Agent on the basis of the equivalent of the composite currency in
United States dollars. The component currencies of the composite currency for
this purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the Component
Currencies. The United States dollar equivalent of each of the Component
Currencies shall be determined by the Exchange Rate Agent on the basis of the
Market Exchange Rate on the second Business Day prior to such payment or, if the
Market Exchange Rate is not then available, on the basis of the most recently
available Market Exchange Rate for each such Component Currency. Any payment
made in the United States under such circumstances will not constitute an Event
of Default as established for this Note in accordance with the terms of the
Indenture.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more
6
<PAGE>
currencies, the amount of the original Component Currency shall be replaced by
the amounts of such two or more currencies, the sum of which shall be equal to
the amount of the original Component Currency.
The Company agrees to indemnify the Holder of this Note against any loss
incurred by the Holder hereof as a result of any judgment or order being given
or made against the Company for any amount due hereunder and such judgment or
order requiring payment in a currency or composite currency (the "Judgment
Currency") other than the Specified Currency, and as a result of any variation
between (i) the rate of exchange at which the Specified Currency amount is
converted into the Judgment Currency for the purpose of entering such judgment
or order, and (ii) the rate of exchange at which the Holder hereof, on the date
of payment of such judgment or order, is able to purchase the Specified Currency
with the amount of the Judgment Currency actually received by it, as the case
may be. The foregoing indemnity constitutes a separate and independent
obligation of the Company and continues in full force and effect notwithstanding
any such judgment or order as aforesaid. The term "rate of exchange" includes
any premiums and costs of exchange payable in connection with the purchase of,
or conversion into, the relevant currency.
All determinations referred to above made by the Exchange Rate Agent shall
be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holder of this Note.
Reference is hereby made to the further provisions of this Note set forth on
the reverse hereof and, if so specified on the face hereof, in an Addendum
hereto, which further provisions shall have the same force and effect as if set
forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the face
of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the terms set
forth in such Addendum or such "Other/Additional Provisions".
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.
7
<PAGE>
IN WITNESS WHEREOF, Colonial Properties Holding Company, Inc., as general
partner of Colonial Realty Limited Partnership has caused this Note to be duly
executed by one of its duly authorized officers.
COLONIAL REALTY LIMITED PARTNERSHIP
By: Colonial Properties Holding Company, Inc.,
not individually but as a general partner
By________________________________
Howard B. Nelson, Jr.
Senior Vice President and Chief
Operating Officer
By________________________________
Douglas B. Nunnelley
Senior Vice President and Chief
Financial Officer
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of
the series designated therein referred
to in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By____________________________
Authorized Signatory
8
<PAGE>
[REVERSE OF NOTE]
COLONIAL REALTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized series of Debt Securities (the
"Debt Securities") of the Company issued, which series of Securities is limited
to $370,000,000 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, and to be issued under
an Indenture, dated as of July 22, 1996, as amended, modified or supplemented
from time to time (the "Indenture"), between the Company and Bankers Trust
Company, 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, obligations,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Debt Securities, and of the terms upon which the
Debt Securities are, and are to be, authenticated and delivered. This Note is
one of the series of Debt Securities designated as "Medium-Term Notes Due Nine
Months or More From Date of Issue" (the "Notes"). All terms used but not
defined in this Note or in an Addendum hereto shall have the meanings assigned
to such terms in the Indenture or on the face hereof, as the case may be. The
terms of the individual Notes may vary with respect to the interest rates or
interest rate formulas, issue dates, maturity, redemption, repayment, currency
of payment or otherwise.
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
specified 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.
This Note will be subject to redemption at the option of the Company
on any date on or after the Initial Redemption Date, if any, specified on the
face hereof, in whole or from time to time in part in increments of U.S.$1,000
or the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S.$1,000 or such minimum Authorized
Denomination), at the Redemption Price (as defined below), together with unpaid
interest accrued thereon to the date fixed for redemption (the "Redemption
Date"), on written notice given to the Holder hereof not more than 60 nor less
than 30 calendar days prior to the Redemption Date and in accordance with the
provisions of the Indenture. The "Redemption Price" shall initially be the
Initial Redemption Percentage specified on the face hereof multiplied by the
unpaid principal amount of this Note to be redeemed. The Initial Redemption
Percentage shall
9
<PAGE>
decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof until the
Redemption Price is 100% of unpaid principal amount to be redeemed. In the
event of redemption of this Note in part only, a new Note of like tenor for the
unredeemed portion hereof and otherwise having the same terms as this Note shall
be issued by the Company in the name of the Holder hereof upon the presentation
and surrender hereof.
This Note will be subject to repayment by the Company at the option of
the Holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S.$1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S.$1,000 or such minimum Authorized Denomination), at a
repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued thereon to the date fixed for repayment
(the "Repayment Date"). For this Note to be repaid, this Note must be received,
together with the form hereon entitled "Option to Elect Repayment" duly
completed, by the Trustee at its corporate trust office not more than 60 nor
less than 30 calendar days prior to the Repayment Date. Exercise of such
repayment option by the Holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
by the Company in the name of the Holder hereof upon the presentation and
surrender hereof.
If this Note is specified on the face hereof as a Discount Note, the
amount payable to the Holder of this Note in the event of redemption, repayment
or acceleration of maturity of this Note will be equal to the sum of (1) the
Issue Price specified on the face hereof (increased by any accruals of the
Discount, as defined below) and, in the event of any redemption of this Note (if
applicable), multiplied by the Initial Redemption Percentage (as adjusted by the
Annual Redemption Percentage Reduction, if applicable) and (2) any unpaid
interest accrued thereon to the Redemption Date, Repayment Date or date of
acceleration of maturity, as the case may be. The difference between the Issue
Price and 100% of the principal amount of this Note is referred to herein as the
"Discount."
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause an assumed yield on the
Note to be constant. The assumed constant yield will be calculated using a 30-
day month, 360-day year convention, a compounding period that, except for the
Initial Period (as defined below), corresponds to the shortest period between
Interest Payment Dates (with ratable accruals within a compounding period), a
constant coupon rate equal to the initial interest rate applicable to this Note
and an assumption that the maturity of this Note will not be accelerated. If
the period from the Original Issue Date to the initial Interest Payment Date
(the "Initial Period") is shorter than the compounding period for this Note, a
proportionate amount
10
<PAGE>
of the yield for an entire compounding period will be accrued. If the Initial
Period is longer than the compounding period, then such period will be divided
into a regular compounding period and a short period, with the short period
being treated as provided in the preceding sentence.
The interest rate borne by this Note will be determined as follows:
(i) Unless the Interest Category of this Note is specified on the face
hereof as a "Floating Rate/Fixed Rate Note" or an "Inverse Floating Rate
Note", or the face hereof specifies that either Other/Additional Provisions
or an Addendum hereto apply, in each case, relating to a different interest
rate formula, this Note shall be designated as a "Regular Floating Rate
Note" and, except as set forth below or specified on the face hereof or in
an Addendum hereto, shall bear interest at the rate determined by reference
to the applicable Interest Rate Basis or Bases (a) plus or minus the
Spread, if any, and/or (b) multiplied by the Spread Multiplier, if any, in
each case as specified on the face hereof. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Note shall be
payable shall be reset as of each Interest Reset Date specified on the face
hereof; provided, however, that the interest rate in effect for the period,
-------- -------
if any, from the Original Issue Date to the Initial Interest Reset Date
shall be the Initial Interest Rate.
(ii) If the Interest Category of this Note is specified on the face
hereof as a "Floating Rate/Fixed Rate Note", then, except as set forth
below or specified on the face hereof or in an Addendum hereto, this Note
shall bear interest at the rate determined by reference to the applicable
Interest Rate Basis or Bases (a) plus or minus the Spread, if any, and/or
(b) multiplied by the Spread Multiplier, if any. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Note shall be
payable shall be reset as of each Interest Reset Date; provided, however,
-------- -------
that (y) the interest rate in effect for the period, if any, from the
Original Issue Date to the Initial Interest Reset Date shall be the Initial
Interest Rate and (z) the interest rate in effect for the period commencing
on the Fixed Rate Commencement Date specified on the face hereof to the
Maturity Date shall be the Fixed Interest Rate specified on the face hereof
or, if no such Fixed Interest Rate is specified, the interest rate in
effect hereon on the day immediately preceding the Fixed Rate Commencement
Date.
(iii) If the Interest Category of this Note is specified on the face
hereof as an "Inverse Floating Rate Note", then, except as set forth below
or specified on the face hereof or in an Addendum hereto, this Note shall
bear interest at the Fixed Interest Rate minus the rate determined by
reference to the applicable Interest Rate Basis or Bases (a) plus or minus
the Spread, if any, and/or
11
<PAGE>
(b) multiplied by the Spread Multiplier, if any; provided, however, that,
-------- -------
unless otherwise specified on the face hereof or in an Addendum hereto, the
interest rate hereon shall not be less than zero. Commencing on the
Initial Interest Reset Date, the rate at which interest on this Note shall
be payable shall be reset as of each Interest Reset Date; provided,
--------
however, that the interest rate in effect for the period, if any, from the
-------
Original Issue Date to the Initial Interest Reset Date shall be the Initial
Interest Rate.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in The
City of New York; provided, however, that if the Specified Currency is other
-------- -------
than United States dollars, such day is also not a day on which banking
institutions are authorized or required by law, regulation or executive order to
close in the Principal Financial Center (as defined below) of the country
issuing the Specified Currency (unless the Specified Currency is European
Currency Units ("ECU"), in which case such day is also not a day that appears as
an ECU non-settlement day on the display designated as "ISDE" on the Reuter
Monitor Money Rates Service (or is not a day designated as an ECU non-settlement
day by the ECU Banking Association) or, if ECU non-settlement days do not appear
on that page (and are not so designated), such day is not a day on which
payments in ECU cannot be settled in the international interbank market);
provided, further, that if LIBOR is an applicable Interest Rate Basis, such day
- -------- -------
is also a London Business Day (as defined below). "London Business Day" means a
day on which dealings in the Designated LIBOR Currency (as defined below) are
transacted in the London interbank market. "Principal Financial Center" means
(i) the capital city of the country issuing the Specified Currency (except as
described in the second preceding sentence with respect to ECU) or (ii) the
capital city of the country to which the Designated LIBOR Currency, if
applicable, relates (or, in the case of ECU, Luxembourg), except, in each case,
that with respect to United States dollars, Australian dollars, Canadian
dollars, Deutsche marks, Dutch guilders, Italian lire and Swiss francs, the
"Principal Financial Center" shall be The City of New York, Sydney, Toronto,
Frankfurt, Amsterdam, Milan (solely with respect to the Specified Currency) and
Zurich, respectively.
Except as set forth above or specified on the face hereof or in an Addendum
hereto, the interest rate in effect on each day shall be (i) if such day is an
Interest Reset Date, the interest rate determined as of the Interest
Determination Date (as defined below) immediately preceding such Interest Reset
Date or (ii) if such day is not an Interest Reset Date, the interest rate
determined as of the Interest Determination Date immediately preceding the most
recent Interest Reset Date (or if none, the Initial Interest Date). If any
Interest Reset Date would otherwise be a day that is not a Business Day, such
Interest Reset Date shall be postponed to the next succeeding Business Day,
except that if LIBOR is an applicable Interest Rate Basis and such Business Day
falls in the next succeeding calendar
12
<PAGE>
month, such Interest Reset Date shall be the immediately preceding Business Day.
In addition, if the Treasury Rate is an applicable Interest Rate Basis and the
Interest Determination Date would otherwise fall on an Interest Reset Date, then
such Interest Reset Date will be postponed to the next succeeding Business Day.
The interest rate applicable to each Interest Reset Period commencing on
the related Interest Reset Date will be determined by the Calculation Agent as
of the applicable Interest Determination Date and will be calculated by the
Calculation Agent on or prior to the Calculation Date (as defined below), except
with respect to the LIBOR and the Eleventh District Cost of Funds Rate, which
will be calculated as of such Interest Determination Date. The "Interest
Determination Date" with respect to the CD Rate, the CMT Rate, the Commercial
Paper Rate, the Federal Funds Rate and the Prime Rate will be the second
Business Day immediately preceding the applicable Interest Reset Date; the
"Interest Determination Date" with respect to the Eleventh District Cost of
Funds Rate shall be the last working day of the month immediately preceding the
applicable Interest Reset Date on which the Federal Home Loan Bank of San
Francisco (the "FHLB of San Francisco") publishes the Index (as defined below);
and the "Interest Determination Date" with respect to LIBOR shall be the second
London Business Day immediately preceding the applicable Interest Reset Date,
unless the Designated LIBOR Currency is British pounds sterling, in which case
the "Interest Determination Date" will be the applicable Interest Reset Date.
The "Interest Determination Date" with respect to the Treasury Rate shall be the
day in the week in which the applicable Interest Reset Date falls on which day
Treasury Bills (as defined below) are normally auctioned (Treasury Bills are
normally sold at an auction held on Monday of each week, unless that day is a
legal holiday, in which case the auction is normally held on the following
Tuesday, except that such auction may be held on the preceding Friday);
provided, however, that if an auction is held on the Friday of the week
- -------- -------
preceding the applicable Interest Reset Date, the "Interest Determination Date"
shall be such preceding Friday. If the interest rate of this Note is determined
with reference to two or more Interest Rate Bases specified on the face hereof,
the "Interest Determination Date" pertaining to this Note shall be the most
recent Business Day which is at least two Business Days prior to the applicable
Interest Reset Date on which each Interest Rate Basis is determinable. Each
Interest Rate Basis shall be determined as of such date, and the applicable
interest rate shall take effect on the related Interest Reset Date.
Unless otherwise specified on the face hereof or in an Addendum hereto, the
rate with respect to each Interest Rate Basis will be determined in accordance
with the applicable provisions below.
CD Rate. If an Interest Rate Basis for this Note is specified on the face
-------
hereof as the CD Rate, the CD Rate shall be determined as of the applicable
Interest Determination Date (a "CD Rate Interest Determination Date") as the
rate on such date
13
<PAGE>
for negotiable United States dollar certificates of deposit having the Index
Maturity specified on the face hereof as published by the Board of Governors of
the Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates" or any successor publication ("H.15(519)") under the heading "CDs
(Secondary Market)", or, if not published by 3:00 P.M., New York City time, on
the related Calculation Date, the rate on such CD Rate Interest Determination
Date for negotiable United States dollar certificates of deposit of the Index
Maturity as published by the Federal Reserve Bank of New York in its daily
statistical release "Composite 3:30 P.M. Quotations for United States Government
Securities" or any successor publication ("Composite Quotations") under the
heading "Certificates of Deposit". If such rate is not yet published in either
H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on the
related Calculation Date, then the CD Rate on such CD Rate Interest
Determination Date will be calculated by the Calculation Agent specified on the
face hereof and will be the arithmetic mean of the secondary market offered
rates as of 10:00 A.M., New York City time, on such CD Rate Interest
Determination Date, of three leading nonbank dealers in negotiable United States
dollar certificates of deposit in The City of New York selected by the
Calculation Agent for negotiable certificates of deposit of major United States
money market banks for negotiable United States dollar certificates of deposit
with a remaining maturity closest to the Index Maturity in an amount that is
representative for a single transaction in that market at that time; provided,
--------
however, that if the dealers so selected by the Calculation Agent are not
- -------
quoting as mentioned in this sentence, the CD Rate determined as of such CD Rate
Interest Determination Date will be the CD Rate in effect on such CD Rate
Interest Determination Date.
CMT Rate. If an Interest Rate Basis for this Note is specified on the face
--------
hereof as the CMT rate, the CMT Rate shall be determined as of the applicable
Interest Determination Date (a "CMT Rate Interest Determination Date") as the
rate displayed on the Designated CMT Telerate Page (as defined below) under the
caption "...Treasury Constant Maturities...Federal Reserve Board Release
H.15...Mondays Approximately 3:45 P.M.", under the column for the Designated CMT
Maturity Index (as defined below) for (i) if the Designated CMT Telerate Page is
7055, the rate on such CMT Rate Interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052, the weekly or monthly average, as
specified on the face hereof, for the week or month, as applicable, ended
immediately preceding the week or month, as applicable, in which the related CMT
Rate Interest Determination Date occurs. If such rate is no longer displayed on
the relevant page or is not displayed by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in H.15(519). If such rate is no
longer published or is not published by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate on such CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity, based on the arithmetic mean of
14
<PAGE>
the secondary market offered rates as of approximately 3:30 P.M., New York City
time, on such CMT Rate Interest Determination Date reported, according to their
written records, by three leading primary United States government securities
dealers (each, a "Reference Dealer") in The City of New York selected by the
Calculation Agent (from five such Reference Dealers selected by the Calculation
Agent and eliminating the highest quotation (or, in the event of equality, one
of the highest) and the lowest quotation (or, in the event of equality, one of
the lowest)), for the most recently issued direct noncallable fixed rate
obligations of the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent is unable to obtain three such Treasury Note quotations, the
CMT Rate on such CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market offered rates as of approximately 3:30 P.M., New York
City time, on such CMT Rate Interest Determination Date of three Reference
Dealers in The City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least $100 million. If three or four (and not
five) of such Reference Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean of the offered rates obtained and
neither the highest nor the lowest of such quotes will be eliminated; provided,
however, that if fewer than three Reference Dealers so selected by the
Calculation Agent are quoting as mentioned herein, the CMT Rate determined as of
such CMT Rate Interest Determination Date will be the CMT Rate in effect on such
CMT Rate Interest Determination Date. If two Treasury Notes with an original
maturity as described in the second preceding sentence have remaining terms to
maturity equally close to the Designated CMT Maturity Index, the Calculation
Agent will obtain quotations for the Treasury Note with the shorter remaining
term to maturity.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service (or any successor service) on the page specified on the face hereof (or
any other page as may replace such page on such service (or any successor
service) for the purpose of displaying Treasury Constant Maturities as reported
in H.15(519) or, if no such page is specified on the face hereof, page 7052.
"Designated CMT Maturity Index" means the original period to maturity of
the United States Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the Designated
CMT Maturity Index shall be 2 years.
15
<PAGE>
Commercial Paper Rate. If an Interest Rate Basis for this Note is
---------------------
specified on the face hereof as the Commercial Paper Rate, the Commercial Paper
Rate shall be determined as of the applicable Interest Determination Date (a
"Commercial Paper Rate Interest Determination Date") as the Money Market Yield
(as defined below) on such date of the rate for commercial paper having the
Index Maturity as published in H.15(519) under the heading "Commercial Paper".
In the event that such rate is not published by 3:00 P.M., New York City time,
on such Calculation Date, then the Commercial Paper Rate on such Commercial
Paper Rate Interest Determination Date will be the Money Market Yield of the
rate for commercial paper having the Index Maturity as published in Composite
Quotations under the heading "Commercial Paper" (with an Index Maturity of one
month or three months being deemed to be equivalent to an Index Maturity of 30
days or 90 days, respectively). If such rate is not yet published in either
H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on such
Calculation Date, then the Commercial Paper Rate on such Commercial Paper Rate
Interest Determination Date will be calculated by the Calculation Agent and
shall be the Money Market Yield of the arithmetic mean of the offered rates at
approximately 11:00 A.M., New York City time, on such Commercial Paper Rate
Interest Determination Date of three leading dealers of commercial paper in The
City of New York selected by the Calculation Agent (after consultation with the
Company) for commercial paper having the Index Maturity placed for an industrial
issuer whose bond rating is "Aa", or the equivalent, from a nationally
recognized statistical rating organization; provided, however, that if the
-------- -------
dealers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the Commercial Paper Rate determined as of such Commercial Paper
Rate Interest Determination Date will be the Commercial Paper Rate in effect on
such Commercial Paper Rate Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage) calculated
in accordance with the following formula:
Money Market Yield = D x 360
--------------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the applicable Interest Reset Period.
Eleventh District Cost of Funds Rate. If an Interest Rate Basis for this
------------------------------------
Note is specified on the face hereof as the Eleventh District Cost of Funds
Rate, the Eleventh District Cost of Funds Rate shall be determined as of the
applicable Interest Determination Date (an "Eleventh District Cost of Funds Rate
Interest Determination Date") as the rate equal to the monthly weighted average
cost of funds for the calendar month immediately preceding the month in which
such Eleventh District Cost of Funds Rate Interest Determination Date falls, as
set forth under the caption "11th District" on Telerate Page 7058 as of 11:00
A.M., San Francisco time, on such Eleventh District Cost of Funds Rate
16
<PAGE>
Interest Determination Date. If such rate does not appear on Telerate Page 7058
on such Eleventh District Cost of Funds Rate Interest Determination Date, then
the Eleventh District Cost of Funds Rate on such Eleventh District Cost of Funds
Rate Interest Determination Date shall be the monthly weighted average cost of
funds paid by member institutions of the Eleventh Federal Home Loan Bank
District that was most recently announced (the "Index") by the FHLB of San
Francisco as such cost of funds for the calendar month immediately preceding
such Eleventh District Cost of Funds Rate Interest Determination Date. If the
FHLB of San Francisco fails to announce the Index on or prior to such Eleventh
District Cost of Funds Rate Interest Determination Date for the calendar month
immediately preceding such Eleventh District Cost of Funds Rate Interest
Determination Date, the Eleventh District Cost of Funds Rate determined as of
such Eleventh District Cost of Funds Rate Interest Determination Date will be
the Eleventh District Cost of Funds Rate in effect on such Eleventh District
Cost of Funds Rate Interest Determination Date.
Federal Funds Rate. If an Interest Rate Basis for this Note is specified
------------------
on the face hereof as the Federal Funds Rate, the Federal Funds Rate shall be
determined as of the applicable Interest Determination Date (a "Federal Funds
Rate Interest Determination Date") as the rate on such date for United States
dollar federal funds as published in H.15(519) under the heading "Federal Funds
(Effective)" or, if not published by 3:00 P.M., New York City time, on the
Calculation Date, the rate on such Federal Funds Rate Interest Determination
Date as published in Composite Quotations under the heading "Federal
Funds/Effective Rate". If such rate is not published in either H.15(519) or
Composite Quotations by 3:00 P.M., New York City time, on the related
Calculation Date, then the Federal Funds Rate on such Federal Funds Interest
Determination Date shall be calculated by the Calculation Agent and will be the
arithmetic mean of the rates for the last transaction in overnight United States
dollar federal funds arranged by three leading brokers of federal funds
transactions in The City of New York selected by the Calculation Agent (after
consultation with the Company), prior to 9:00 A.M., New York City time, on such
Federal Funds Rate Interest Determination Date; provided, however, that if the
-------- -------
brokers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the Federal Funds Rate determined as of such Federal Funds Rate
Interest Determination Date will be the Federal Funds Rate in effect on such
Federal Funds Rate Interest Determination Date.
LIBOR. If an Interest Rate Basis for this Note is specified on the face
-----
hereof as LIBOR, LIBOR shall be determined by the Calculation Agent as of the
applicable Interest Determination Date (a "LIBOR Interest Determination Date")
in accordance with the following provisions:
(i) if (a) "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the Designated LIBOR Page (as
defined below) by its terms provides only for a single rate, in which case such
single rate will be used) for
17
<PAGE>
deposits in the Designated LIBOR Currency having the Index Maturity, commencing
on the applicable Interest Reset Date, that appear (or, if only a single rate is
required as aforesaid, appears) on the Designated LIBOR Page (as defined below)
as of 11:00 A.M., London time, on such LIBOR Interest Determination Date, or (b)
"LIBOR Telerate" is specified on the face hereof, or if neither "LIBOR Reuters"
nor "LIBOR Telerate" is specified on the face hereof as the method for
calculating LIBOR, the rate for deposits in the Designated LIBOR Currency having
the Index Maturity, commencing on such Interest Reset Date, that appears on the
Designated LIBOR Page as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date. If fewer than two such offered rates appear (if "LIBOR
Reuters" is applicable), or if no such rate appears (if "LIBOR Telerate" is
applicable) LIBOR on such LIBOR Interest Determination Date shall be determined
in accordance with the provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which fewer
than two offered rates appear (if "LIBOR Reuters" is applicable), or no rate
appears, (if "LIBOR Telerate" is applicable) on the Designated LIBOR Page as
specified in clause (i) above, the Calculation Agent shall request the principal
London offices of each of four major reference banks in the London interbank
market, as selected by the Calculation Agent, to provide the Calculation Agent
with its offered quotation for deposits in the Designated LIBOR Currency for the
period of the Index Maturity, commencing on the applicable Interest Reset Date,
to prime banks in the London interbank market at approximately 11:00 A.M.,
London time, on such LIBOR Interest Determination Date and in a principal amount
that is representative for a single transaction in the Designated LIBOR Currency
in such market at such time. If at least two such quotations are so provided,
then LIBOR on such LIBOR Interest Determination Date will be the arithmetic mean
of such quotations. If fewer than two such quotations are so provided, then
LIBOR on such LIBOR Interest Determination Date will be the arithmetic mean of
the rates quoted at approximately 11:00 A.M., in the applicable Principal
Financial Center, on such LIBOR Interest Determination Date by three major banks
in such Principal Financial Center selected by the Calculation Agent for loans
in the Designated LIBOR Currency to leading European banks, having the Index
Maturity and in a principal amount that is representative for a single
transaction in the Designated LIBOR Currency in such market at such time;
provided, however, that if the banks so selected by the Calculation Agent are
- -------- -------
not quoting as mentioned in this sentence, LIBOR determined as of such LIBOR
Interest Determination Date shall be LIBOR in effect on such LIBOR Interest
Determination Date.
"Designated LIBOR Currency" means the currency or composite currency
specified on the face hereof as to which LIBOR shall be calculated or, if no
such currency or composite currency is specified on the face hereof, United
States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on the
face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) on the page
18
<PAGE>
specified on the face hereof (or any other page as may replace such page on such
service (or any successor service)), for the purpose of displaying the London
interbank rates of major banks for the Designated LIBOR Currency, or (b) if
"LIBOR Telerate" is specified on the face hereof or neither "LIBOR Reuters" nor
"LIBOR Telerate" is specified on the face hereof as the method for calculating
LIBOR, the display on the Dow Jones Telerate Service (or any successor service)
on the page specified on the face hereof (or any other page as may replace such
page on such service (or any successor service)) for the purpose of displaying
the London interbank rates of major banks for the Designated LIBOR Currency.
Prime Rate. If an Interest Rate Basis for this Note is specified on the
----------
face hereto as the Prime Rate, the Prime Rate shall be determined as of the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the rate on such date as such rate is published in H.15(519) under the
heading "Bank Prime Loan". If such rate is not published prior to 3:00 P.M.,
New York City time, on the related Calculation Date, then the Prime Rate shall
be the arithmetic mean of the rates of interest publicly announced by each bank
that appears on the Reuters Screen USPRIME1 Page (as defined below) as such
bank's prime rate or base lending rate as in effect for such Prime Rate Interest
Determination Date. If fewer than four such rates appear on the Reuters Screen
USPRIME1 Page for such Prime Rate Interest Determination Date, the Prime Rate
shall be the arithmetic mean of the prime rates or base lending rates quoted on
the basis of the actual number of days in the year divided by a 360-day year as
of the close of business on such Prime Rate Interest Determination Date by four
major money center banks in The City of New York selected by the Calculation
Agent (after consultation with the Company). If fewer than four such quotations
are so provided, the Prime Rate shall be the arithmetic mean of four prime rates
quoted on the basis of the actual number of days in the year divided by a 360-
day year as of the close of business on such Prime Rate Interest Determination
Date as furnished in The City of New York by the major money center banks, if
any, that have provided such quotations and by a reasonable number of substitute
banks or trust companies to obtain four such prime rate quotations, provided
such substitute banks or trust companies are organized and doing business under
the laws of the United States, or any State thereof, each having total equity
capital of at least U.S.$500 million and being subject to supervision or
examination by Federal or State authority, selected by the Calculation Agent to
provide such rate or rates; provided, however, that if the banks or trust
-------- -------
companies so selected by the Calculation Agent (after consultation with the
Company) are not quoting as mentioned in this sentence, the Prime Rate
determined as of such Prime Rate Interest Determination Date will be the Prime
Rate in effect on such Prime Rate Interest Determination Date.
"Reuters Screen USPRIME1 Page" means the display designated as page
"USPRIME1" on the Reuter Monitor Money Rates Service (or any successor service)
(or such other page as may replace the USPRIME1 page on such service (or any
successor service) for the
19
<PAGE>
purpose of displaying prime rates or base lending rates of major United States
banks).
Treasury Rate. If an Interest Rate Basis for this Note is specified on the
-------------
face hereof as the Treasury Rate, the Treasury Rate shall be determined as of
the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate from the auction held on such Treasury Rate
Interest Determination Date (the "Auction") of direct obligations of the United
States ("Treasury Bills") having the Index Maturity, as such rate is published
in H.15(519) under the heading "Treasury bills-auction average (investment)" or,
if not published by 3:00 P.M., New York City time, on the related Calculation
Date, the auction average rate of such Treasury Bills (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) as otherwise announced by the United States Department of the
Treasury. In the event that the results of the Auction of Treasury Bills having
the Index Maturity are not reported as provided above by 3:00 P.M., New York
City time, on such Calculation Date, or if no such Auction is held, then the
Treasury Rate shall be calculated by the Calculation Agent and shall be a yield
to maturity (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 arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time,
on such Treasury Rate Interest Determination Date, of three leading primary
United States government securities dealers selected by the Calculation Agent
(after consultation with the Company), for the issue of Treasury Bills with a
remaining maturity closest to the Index Maturity; provided, however, that if the
-------- -------
dealers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the Treasury Rate determined as of such Treasury Rate Interest
Determination Date will be the Treasury Rate in effect on such Treasury Rate
Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified on the face hereof. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law of
general application.
The "Calculation Date", if applicable, pertaining to any Interest
Determination Date shall be the earlier of (i) the tenth calendar day after such
Interest Determination Date or, if such day is not a Business Day, the next
succeeding Business Day or (ii) the Business Day immediately preceding the
applicable Interest Payment Date or the Maturity Date, as the case may be. At
the request of the Holder hereof, the Calculation Agent will provide to the
Holder hereof the interest rate hereon then in effect and, if determined, the
interest rate that will become effective as a result of a determination made for
the next succeeding Interest Reset Date.
20
<PAGE>
Accrued interest hereon shall be an amount calculated by multiplying the
principal amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the applicable Interest Period. Unless otherwise specified as the Day Count
Convention on the face hereof, the interest factor for each such date shall be
computed by dividing the interest rate applicable to such day by 360 if the CD
Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the
Federal Funds Rate, LIBOR or the Prime Rate is an applicable Interest Rate Basis
or by the actual number of days in the year if the CMT Rate or the Treasury Rate
is an applicable Interest Rate Basis. Unless otherwise specified as the Day
Count Convention on the face hereof, the interest factor for this Note, if the
interest rate is calculated with reference to two or more Interest Rate Bases,
shall be calculated in each period in the same manner as if only the Applicable
Interest Rate Basis specified on the face hereof applied.
All percentages resulting from any calculation on this Note shall be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards, and all amounts used in or
resulting from such calculation on this Note shall be rounded, in the case of
United States dollars, to the nearest cent or, in the case of a Specified
Currency other than United States dollars, to the nearest unit (with one-half
cent or unit being rounded upwards).
If an Event of Default, as established for this Note in accordance with the
terms of the Indenture, shall occur and be continuing, the principal of the
Notes may be accelerated 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.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Debt Securities at any time by the
Company and the Trustee with the consent of the Holders of a majority of the
aggregate principal amount of all Debt Securities of each series at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the Holders of a majority of the aggregate principal amount of the
outstanding Debt Securities of any series, on behalf of the Holders of all such
Debt Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture, as well as 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 of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
21
<PAGE>
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, 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 Company upon surrender of this Note for registration of transfer
at the office or agency of the Company 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 Company 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 Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. In no event
shall the Company be required to pay any Additional Amounts as contemplated by
the Indenture.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any authorized agent of the Company 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 notwithstanding any
notation of ownership or other writing hereon) for the purpose of receiving
payment of, or on account of, the principal hereof and premium, if any, subject
to the provisions on the face hereof, interest hereon, and for all other
purposes, and neither the Company, the Trustee nor any such authorized agent
shall be affected by notice to the contrary.
Notwithstanding anything contained herein or in the Indenture to the
contrary, no recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Note, or because of any indebtedness
evidenced thereby (including without limitation, any obligation or indebtedness
relating to the principal of, or premium or interest or any other amounts due,
or claimed to be due, on this Note), or for any claim based thereon or otherwise
in respect thereof, shall be had (i) against Colonial Properties Holding
Company, Inc. or any other
22
<PAGE>
partner in the Company, (ii) against Colonial Properties Trust or any other
person which owns an interest, directly or indirectly, in any partner in the
Company or (iii) against any promoter, as such, or against any past, present or
future stockholder, partner, officer or director, as such, of the Company or of
any successor, either directly or through the Company or any successor, under
any rule of law, statute or constitutional provisions or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of this Note by
the Holder thereof and as part of the consideration for the issue of the
Securities of this series. The Holder of this Note acknowledges by acceptance
of this Note that its sole remedies under the Indenture for any default by the
Company in the payment of the principal of, or any premium or interest or any
amounts due, or claimed to be due, on this Note, or otherwise, are limited to
claims against the property of the Company.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES.
All terms used in this Note which are defined in the Indenture and not
otherwise defined in this Note shall have the meanings assigned to them in the
Indenture.
23
<PAGE>
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:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (State)
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.
24
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company 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 Four Albany Street, New York, New York 10006, not more than 60 nor
less than 30 calendar days prior to the Repayment Date, (i) this Note with this
"Option to Elect Repayment" form duly completed or, (ii) a telegram, telex,
facsimile transmission, or a letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or trust company in the United States setting forth the name of the Holder
of this Note, the principal amount of this Note, the principal amount of this
Note to be repaid, the certificate number or a description of the tenor or term
of this Note, a statement that the option to elect repayment is being exercised
thereby, and a guarantee that this Note to be repaid, together with this "Option
to Elect Repayment" duly completed, will be received by the Trustee not later
than the fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter; however, such telegram, telex, facsimile transmission,
or letter shall only be effective if this Note and form duly completed are
received by the Trustee by such fifth Business Day.
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
Date: ______________________ 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.
25
<PAGE>
EXHIBIT B
---------
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN./1/
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./2/
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. FXR-___ ______________ ________________
COLONIAL REALTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY DATE:
INTEREST PAYMENT DATE(S):
[ ] June 15 and December 15 OPTIONAL REPAYMENT [ ] CHECK IF A
DATE(S): DISCOUNT NOTE
Issue Price: %
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE
REDUCTION: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION: EXCHANGE RATE
[ ] United States dollars [ ] $1,000 and integral AGENT:
[ ] Other: multiples thereof
[ ] Other:
ADDENDUM ATTACHED OTHER/ADDITIONAL PROVISIONS:
[ ] Yes
[ ] No
- -----------------------
/1/ This paragraph applies to Global Notes only.
/2/ This paragraph applies to Global Notes only.
<PAGE>
Colonial Realty Limited Partnership, a Delaware limited partnership
(the "Company", which terms include any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to _________________________ , or registered assigns, the Principal Amount of
___________________, on the Stated Maturity Date specified above (or any
Redemption Date or Repayment Date, each as defined on the reverse hereof, or any
earlier date of acceleration of maturity) (each such date being hereinafter
referred to as the "Maturity Date" with respect to the principal repayable on
such date) and to pay interest thereon (and on any overdue principal, premium,
and/or interest to the extent legally enforceable), at the Interest Rate per
annum specified above, until the principal hereof is paid or duly made available
for payment. The Company 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 next
succeeding Interest Payment Date, interest payments will commence on the second
Interest Payment Date next succeeding the Original Issue Date to the Holder (as
defined below) of this Note on the Record Date with respect to such second
Interest Payment Date. Interest on this Note will be computed on the basis of a
360-day year of twelve 30-day months.
Interest on this Note 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 (each, an "Interest Period"). 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 (the "Holder") in whose name this Note (or one or more predecessor
Notes) 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"); provided, however, that interest
-------- -------
payable on the Maturity Date will be payable to the person to whom the principal
hereof and premium, if any, hereon shall be payable. Any interest not so
punctually paid or duly provided for ("Defaulted Interest") on any Interest
Payment Date other than the Maturity Date will forthwith cease to be payable to
the Holder on any Record Date, and shall be paid to the person in whose name
this Note is registered at the close of business on a special record date (the
"Special Record Date") for the payment of such Defaulted Interest to be fixed by
the Trustee hereinafter referred to, written notice whereof shall be given to
the Holder of this Note 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
Note may be listed, and upon such notice as may be required by such exchange,
all as more fully provided for in the Indenture.
2
<PAGE>
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, upon submission of a duly completed election form as
contemplated on the reverse hereof) 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 Four Albany Street, New York, New York 10006, or at such
other paying agency in the Borough of Manhattan, The City of New York, as the
Company may determine; provided, however, that if the Specified Currency
-------- -------
specified above is other than United States dollars and such payment is to be
made in the Specified Currency in accordance with the provisions set forth
below, such payment will be made by wire transfer of immediately available funds
to an account with a bank designated by the Holder hereof at least 15 calendar
days prior to the Maturity Date, provided that such bank has appropriate
facilities therefor and that this Note (and, if applicable, a duly completed
repayment election form) is presented and surrendered at the aforementioned
office of the Trustee in time for the Trustee to make such payment in such funds
in accordance with its normal procedures. Payment of interest due on any
Interest Payment Date other than the Maturity Date will be made by check mailed
to the address of the person entitled thereto as such address shall appear in
the Security Register maintained at the aforementioned office of the Trustee;
provided, however, that a Holder of U.S.$10,000,000 (or, if the Specified
- -------- -------
Currency is other than United States dollars, the equivalent thereof in the
Specified Currency) or more in aggregate principal amount of Notes (whether
having identical or different terms and provisions) 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.
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 made on the date such payment was due, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be, to the date of
such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in The
City of New York; provided, however, that if the Specified Currency is other
-------- -------
than United States dollars and any payment is to be made in the Specified
Currency in accordance with the provisions hereof, such day is also not a day on
which banking institutions are authorized
3
<PAGE>
or required by law, regulation or executive order to close in the Principal
Financial Center (as defined below) of the country issuing the Specified
Currency (unless the Specified Currency is European Currency Units ("ECU"), in
which case such day is also not a day that appears as an ECU non-settlement day
on the display designated as "ISDE" on the Reuter Monitor Money Rates Service
(or is not a day designated as an ECU non-settlement day by the ECU Banking
Association) or, if ECU non-settlement days do not appear on that page (and are
not so designated), a day that is not a day on which payments in ECU cannot be
settled in the international interbank market).
"Principal Financial Center" means the capital city of the country
issuing the Specified Currency (except as described in the immediately preceding
paragraph with respect to ECU), except that with respect to United States
dollars, Australian dollars, Canadian dollars, Deutsche marks, Dutch guilders,
Italian lire and Swiss francs, the "Principal Financial Center" shall be The
City of New York, Sydney, Toronto, Frankfurt, Amsterdam, Milan and Zurich,
respectively.
The Company is obligated to make payment of principal, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than United States dollars, except as otherwise provided below, any such amounts
so payable by the Company will be converted by the Exchange Rate Agent specified
above into United States dollars for payment to the Holder of this Note.
If the Specified Currency is other than United States dollars, the
Holder of this Note may elect to receive any amount payable hereunder in such
Specified Currency. If the Holder of this Note shall not have duly made an
election to receive all or a specified portion of any payment of principal,
premium, if any, and/or interest in respect of this Note in the Specified
Currency, any United States dollar amount to be received by the Holder of this
Note will be based on the highest bid quotation in The City of New York received
by the Exchange Rate Agent at approximately 11:00 A.M., New York City time, on
the second Business Day preceding the applicable payment date from three
recognized foreign exchange dealers (one of whom may be the Exchange Rate Agent)
selected by the Exchange Rate Agent and approved by the Company for the purchase
by the quoting dealer of the Specified Currency for United States dollars for
settlement on such payment date in the aggregate amount of the Specified
Currency payable to all Holders of Notes scheduled to receive United States
dollar payments and at which the applicable dealer commits to execute a
contract. All currency exchange costs will be borne by the Holder of this Note
by deductions from such payments. If three such bid quotations are
4
<PAGE>
not available, payments on this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the
Holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee at its corporate trust office in The City of New York on or prior to
the applicable Record Date or at least 15 calendar days prior to the Maturity
Date, as the case may be. Such written request may be mailed or hand delivered
or sent by cable, telex or other form of facsimile transmission. The Holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the Holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency, but the
Specified Currency is not available due to the imposition of exchange controls
or other circumstances beyond the control of the Company, the Company will be
entitled to satisfy its obligations to the Holder of this Note by making such
payment in United States dollars on the basis of the Market Exchange Rate (as
defined below) determined by the Exchange Rate Agent on the second Business Day
prior to such payment date or, if such Market Exchange Rate is not then
available, on the basis of the most recently available Market Exchange Rate.
The "Market Exchange Rate" for the Specified Currency means the noon dollar
buying rate in The City of New York for cable transfers for the Specified
Currency as certified for customs purposes (or if not so certified, as otherwise
determined) by the Federal Reserve Bank of New York. Any payment made in United
States dollars under such circumstances will not constitute an Event of Default
as established for this Note in accordance with the terms of the
Indenture.
If the Specified Currency is a composite currency and the Holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency, but such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Company, then the Company will be entitled to satisfy its obligations to
the Holder of this Note by making such payment in United States dollars. The
amount of each payment in United States dollars shall be computed by the
Exchange Rate Agent on the basis of the equivalent of the composite currency in
United
5
<PAGE>
States dollars. The component currencies of the composite currency for this
purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the Component
Currencies. The United States dollar equivalent of each of the Component
Currencies shall be determined by the Exchange Rate Agent on the basis of the
Market Exchange Rate on the second Business Day prior to such payment date or,
if the Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate for each such Component Currency. Any
payment made in United States dollars under such circumstances will not
constitute an Event of Default as established for this Note in accordance with
the terms of the Indenture.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
The Company agrees to indemnify the Holder of this Note against any
loss incurred by the Holder hereof as a result of any judgment or order being
given or made against the Company for any amount due hereunder and such judgment
or order requiring payment in a currency or composite currency (the "Judgment
Currency") other than the Specified Currency, and as a result of any variation
between (i) the rate of exchange at which the Specified Currency amount is
converted into the Judgment Currency for the purpose of entering such judgment
or order, and (ii) the rate of exchange at which the Holder hereof, on the date
of payment of such judgment or order, is able to purchase the Specified Currency
with the amount of the Judgment Currency actually received by it, as the case
may be. The foregoing indemnity constitutes a separate and independent
obligation of the Company and continues in full force and effect notwithstanding
any such judgment or order as aforesaid. The term "rate of exchange" includes
any premiums and costs of exchange payable in connection with the purchase of,
or conversion into, the relevant currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Holder of this Note.
6
<PAGE>
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified on the face hereof, in an
Addendum hereto, which further provisions shall have the same force and effect
as if set forth on the face hereof.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Provisions" apply to this Note as specified above, this Note
shall be subject to the terms set forth in such Addendum or such
"Other/Additional Provisions".
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.
7
<PAGE>
IN WITNESS WHEREOF, Colonial Properties Holding Company, Inc., as
general partner of Colonial Realty Limited Partnership, has caused this Note to
be duly executed by one of its duly authorized officers.
COLONIAL REALTY LIMITED PARTNERSHIP
By: Colonial Properties Holding Company, Inc., not
individually but as its general partner
By
----------------------------------------
Howard B. Nelson, Jr.
Senior Vice President and
Chief Operating Officer
By
----------------------------------------
Douglas B. Nunnelley
Senior Vice President and
Chief Financial Officer
- -------------------------------
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of
the series designated therein referred
to in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By
-----------------------------
Authorized Signatory
8
<PAGE>
[REVERSE OF NOTE]
COLONIAL REALTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Debt Securities (the
"Debt Securities") of the Company, which series of Securities is limited to
$370,000,000 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, issued and to be issued
under an Indenture, dated as of July 22, 1996, as amended, modified or
supplemented from time to time (the "Indenture"), between the Company and
Bankers Trust Company, 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, obligations, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Debt Securities, and of the
terms upon which the Debt Securities are, and are to be, authenticated and
delivered. This Note is one of the series of Debt Securities designated as
"Medium-Term Notes Due Nine Months or More From Date of Issue" (the "Notes").
All terms used but not defined in this Note or in an Addendum hereto shall have
the meanings assigned to such terms in the Indenture or on the face hereof, as
the case may be. The terms of the individual Notes may vary with respect to the
interest rates or interest rate formulas, issue dates, maturity, redemption,
repayment, currency of payment and otherwise.
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 specified 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.
This Note will be subject to redemption at the option of the Company
on any date on or after the Initial Redemption Date, if any, specified on the
face hereof, in whole or from time to time in part in increments of U.S.$1,000
or the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S.$1,000 or such minimum Authorized
Denomination), at the Redemption Price (as defined below), together with unpaid
interest accrued thereon to the date fixed for redemption (the "Redemption
Date"), on written notice given to the Holder hereof not more than 60 nor less
than 30 calendar days prior to the Redemption Date and in accordance with the
provisions of the Indenture. The "Redemption Price" shall initially be the
Initial
9
<PAGE>
Redemption Percentage specified on the face hereof multiplied by the unpaid
principal amount of this Note to be redeemed. The Initial Redemption Percentage
shall decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof until the
Redemption Price is 100% of unpaid principal amount to be redeemed. In the
event of redemption of this Note in part only, a new Note of like tenor for the
unredeemed portion hereof and otherwise having the same terms as this Note shall
be issued by the Company in the name of the Holder hereof upon the presentation
and surrender hereof.
This Note will be subject to repayment by the Company at the option of
the Holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S.$1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S.$1,000 or such minimum Authorized Denomination), at a
repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued thereon to the date fixed for repayment
(the "Repayment Date"). For this Note to be repaid, this Note, together with
the form hereon entitled "Option to Elect Repayment" duly completed, by the
Trustee at its corporate trust office not more than 60 nor less than 30 calendar
days prior to the Repayment Date. Exercise of such repayment option by the
Holder hereof will be irrevocable. In the event of repayment of this Note in
part only, a new Note of like tenor for the unrepaid portion hereof and
otherwise having the same terms as this Note shall be issued by the Company in
the name of the Holder hereof upon the presentation and surrender hereof.
If this Note is a Discount Note as specified on the face hereof, the
amount payable to the Holder of this Note in the event of redemption, repayment
or acceleration of maturity will be equal to the sum of (1) the Issue Price
specified on the face hereof (increased by any accruals of the Discount, as
defined below) and, in the event of any redemption of this Note (if applicable),
multiplied by the Initial Redemption Percentage (as adjusted by the Annual
Redemption Percentage Reduction, if applicable) and (2) any unpaid interest
accrued thereon to the Redemption Date, Repayment Date or date of acceleration
of maturity, as the case may be. The difference between the Issue Price and
100% of the principal amount of this Note is referred to herein as the
"Discount".
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause the yield on the Note to
be constant. The constant yield will be calculated using a 30-day month, 360-
day year convention, a compounding period that, except for the Initial Period
(as defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period) and an assumption that
the maturity of this Note will not be accelerated. If the period from the
Original
10
<PAGE>
Issue Date to the initial Interest Payment Date (the "Initial Period") is
shorter than the compounding period for this Note, a proportionate amount of the
yield for an entire compounding period will be accrued. If the Initial Period
is longer than the compounding period, then such period will be divided into a
regular compounding period and a short period, with the short period being
treated as provided in the preceding sentence.
If an Event of Default, as established for this Note in accordance
with the terms of the Indenture, shall occur and be continuing, the principal of
the Notes may be accelerated 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.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Debt Securities at any time by the
Company and the Trustee with the consent of the Holders of a majority of the
aggregate principal amount of all Debt Securities of each series at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the Holders of a majority of the aggregate principal amount of the
outstanding Debt Securities of any series, on behalf of the Holders of all such
Debt Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture, as well as 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 of transfer
hereof or in exchange heretofore or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, 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 and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless (i) such Holder shall have previously given
written notice to the Trustee of a continuing Event of Default with respect to
the Notes outstanding at the time, (ii) the Holders of not less than 25% in
principal amount of the Notes outstanding at the time shall have made written
request to the Trustee to institute proceedings in
11
<PAGE>
respect to such Event of Default in its own name as Trustee, (iii) such Holder
or Holders have offered reasonable indemnity to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such request, (iv)
the Trustee shall have failed to institute any such proceedings for 60 days
after its receipt of such notice, request and offer of indemnity and (v) the
Trustee shall not have received from the Holders of a majority in principal
amount of the Notes outstanding at the time a direction inconsistent with such
request.
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 Company upon surrender of this Note for registration of
transfer at the office or agency of the Company 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
Company 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 Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. In no
event shall the Company be required to pay any Additional Amounts as
contemplated by the Indenture.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any authorized agent of the Company 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 notwithstanding any
notation of ownership or other writing hereon) for the purpose of receiving
payment of, or on account of, the principal hereof and premium, if any subject
to the provisions on the face hereof, interest hereon, and for all other
purposes, and neither the Company, the Trustee nor any such authorized agent
shall be affected by notice to the contrary.
Notwithstanding anything contained herein or in the Indenture to the
contrary, no recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Note, or because of any indebtedness
evidenced thereby (including without limitation, any obligation of indebtedness
relating to the principal of, or premium or interest or any other amounts due,
or claimed to be due, on this Note), or for any claim based thereon or
12
<PAGE>
otherwise in respect thereof, shall be had (i) against Colonial Properties
Holding Company, Inc. or any other partner in the Company, (ii) against Colonial
Properties Trust or any other person which owns an interest, directly or
indirectly, in any partner in the Company or (iii) against any promoter, as
such, or against any past, present or future stockholder, partner, officer or
director, as such, of the Company or of any successor, either directly or
through the Company or any successor, under any rule of law, statute or
constitutional provisions or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of this Note by the Holder thereof and as
part of the consideration for the issue of the Securities of this series. The
Holder of this Note acknowledges by acceptance of this Note that its sole
remedies under the Indenture for any default by the Company in the payment of
the principal of, or any premium or interest or any amounts due, or claimed to
be due, on this Note, or otherwise, are limited to claims against the property
of the Company.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES.
All terms used in this Note which are defined in the Indenture and not
otherwise defined in this Note shall have the meanings assigned to them in the
Indenture.
13
<PAGE>
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:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (State)
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.
14
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company 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 Four Albany Street, New York, New York 10006, not more than 60 nor
less than 30 calendar days prior to the Repayment Date (i) this Note with this
"Option to Elect Repayment" form duly completed or, (ii) a telegram, telex,
facsimile transmission, or a letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or trust company in the United States setting forth the name of the Holder
of this Note, the principal amount of this Note, the principal amount of this
Note to be repaid, the certificate number of a description of the tenor and
term of this Note, a statement that the option to elect repayment is being
exercised thereby, and a guarantee that this Note to be repaid, together with
this "Option to Elect Repayment" duly completed, will be received by the Trustee
not later than the fifth Business Day after the date of such telegram, telex,
facsimile transmission or letter; however, such telegram, telex, facsimile
transmission, or letter shall only be effective if this Note and form duly
completed are received by the Trustee by such fifth Business Day.
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
Date: ______________________ 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.
15
<PAGE>
EXHIBIT C
COLONIAL REALTY LIMITED PARTNERSHIP
CONSOLIDATED AND COMBINED INCLUDING
PREDECESSOR BUSINESS
EARNINGS TO FIXED CHARGES RATIO
<TABLE>
<CAPTION>
Six Months Ended Year Ended December 31
---------------- ------------------------------------------------------------------------
June 30, 1996 1995 1994 1993 1992 1991
---------------- ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
Income before gains from
sales of property and
extraordinary items $18,958,016 $ 25,066,843 $ 16,527,968 $ 3,509,020 $ (780,119) $ (3,365,952)
----------- ------------ ------------ ------------ ------------ ------------
Fixed charges:
Interest expense 10,230,852 23,972,107 10,819,643 12,771,645 14,508,800 14,654,142
Interest expense capitalized 1,418,100 868,093 333,197 -0- 175,962 567,412
Amortization of debts issuance
costs and interest rate caps 990,478 2,325,070 2,292,000 736,504 249,246 292,082
----------- ------------ ------------ ------------ ------------ ------------
Total Fixed Charges 12,639,430 27,165,270 13,444,840 13,508,149 14,934,008 15,513,636
----------- ------------ ------------ ------------ ------------ ------------
Earnings $31,597,446 $ 52,232,113 $ 29,972,808 $ 17,017,169 $ 14,153,889 $ 12,147,684
============ ============ ============ ============ ============ ============
Ratio of Earnings to
Fixed Charges 2.50 1.92 2.23 1.26 .95 .78
=========== ============ ============ ============ ============ ============
Earnings deficiency to
cover fixed charges N/A N/A N/A NA $ 780,119 $ 3,365,952
=========== ============ ============ ============ ============ ============
</TABLE>
