<PAGE> 1
Filed Pursuant to Rule 424(b)(5)
Registration No. 333-03555
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS SUPPLEMENT, DATED SEPTEMBER 13, 1996
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED AUGUST 9, 1996)
$100,000,000
[LOGO] POST APARTMENT HOMES, L.P.
% NOTES DUE 2003
------------------------
The % Notes due , 2003 (the "Notes") offered hereby (the
"Offering") are being issued by Post Apartment Homes, L.P., a Georgia limited
partnership (the "Operating Partnership"), in an aggregate principal amount of
$100,000,000. The Notes will mature on , 2003 and are redeemable at
any time at the option of the Operating Partnership, in whole or in part, at a
redemption price equal to the sum of (i) the principal amount of the Notes being
redeemed plus accrued interest to the redemption date and (ii) the Make-Whole
Amount (as defined in "Description of the Notes -- Optional Redemption"), if
any. The Notes are not subject to any mandatory sinking fund. Interest on the
Notes is payable semi-annually in arrears on each and
, commencing , 1997. See "Description of the
Notes."
The Notes will be represented by a single fully-registered global note in
book-entry form, without coupons (a "Global Note"), registered in the name of
the nominee of the Depository Trust Company ("DTC"). Beneficial interests in the
Global Note will be shown on, and transfers thereof will be effected only
through, records maintained by DTC (with respect to beneficial interests of
participants) or by participants or persons that hold interests through
participants (with respect to beneficial interests of beneficial owners). Owners
of beneficial interests in the Global Note will be entitled to physical delivery
of Notes in definitive form equal in principal amount to their respective
beneficial interest only under the limited circumstances described under
"Description of the Notes -- Book-Entry System." Settlement for the Notes will
be made in immediately available funds. The Notes will trade in DTC's Same-Day
Funds Settlement System until maturity or until the Notes are issued in
definitive form, and secondary market trading activity in the Notes will
therefore settle in immediately available funds. All payments of principal and
interest in respect of the Notes will be made by the Operating Partnership in
immediately available funds. See "Description of the Notes -- Same-Day
Settlement and Payment."
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO
WHICH IT RELATES. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
------------------------
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED THE
MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
PROCEEDS TO THE
UNDERWRITING OPERATING
PRICE TO PUBLIC(1) DISCOUNT(2) PARTNERSHIP(1)(3)
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Note........................................... % % %
- ---------------------------------------------------------------------------------------------------------
Total..............................................
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
</TABLE>
(1) Plus accrued interest, if any, from , 1996.
(2) The Operating Partnership has agreed to indemnify the Underwriters against
certain liabilities, including liabilities under the Securities Act of 1933.
See "Underwriting."
(3) Before deducting expenses payable by the Operating Partnership estimated at
$275,000.
------------------------
The Notes are being offered by the several Underwriters, subject to prior
sale, when, as and if issued by the Operating Partnership and delivered to and
accepted by them, subject to approval of certain legal matters by counsel for
the Underwriters and certain other conditions. The Underwriters reserve the
right to withdraw, cancel or modify such offer to and reject orders in whole or
in part. It is expected that delivery of the Notes will be made in New York, New
York on or about , 1996.
------------------------
MERRILL LYNCH & CO.
J.P. MORGAN & CO.
DEAN WITTER REYNOLDS INC.
------------------------
The date of this Prospectus Supplement is September , 1996.
<PAGE> 2
Post Properties, Inc.
Maps
[The graphic material to be included is (i) a map of the southeastern part
of the United States indentifying the primary markets in which the Operating
Partnership (as defined) owns or operates communities and (ii) a map of the
Atlanta Metropolitan Area identifying the location of the communities owned or
operated by the Operating Partnership in that market.]
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY EFFECT TRANSACTIONS
WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE NOTES AT LEVELS ABOVE THAT
WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
S-2
<PAGE> 3
PROSPECTUS SUPPLEMENT SUMMARY
The following summary is qualified in its entirety by, and should be read
in conjunction with, the more detailed information appearing elsewhere in this
Prospectus Supplement and the accompanying Prospectus or incorporated herein and
therein by reference. As used herein and in the accompanying Prospectus, the
term "Operating Partnership" includes Post Apartment Homes, L.P. and its
subsidiaries and predecessors, unless the context indicates otherwise.
THE OPERATING PARTNERSHIP
The Operating Partnership is one of the largest developers and operators of
upscale multifamily apartment communities in the Southeastern United States. As
of September 1, 1996, the Operating Partnership owned 46 stabilized communities
(the "Communities") containing 17,144 apartment units located primarily in
metropolitan Atlanta, Georgia and Tampa, Florida. In addition, as of September
1, 1996 the Operating Partnership had under construction or in initial lease-up
nine new communities in the Atlanta, Tampa and Charlotte metropolitan areas that
will contain an aggregate of 3,276 apartment units when completed. For the six
months ended June 30, 1996, the average economic occupancy rate of the 41
Communities and the first phase of an additional Community stabilized for the
entire period was 95.6%. The average monthly rental rate per apartment unit at
these Communities for the same period was $745. The Operating Partnership also
manages through affiliates two communities with 744 apartment units under the
Post(R) brand name for third parties and approximately 9,700 additional
apartment units owned by third parties. The Operating Partnership is a
fully-integrated organization with multifamily development, acquisition,
operation and asset management expertise and has approximately 1,100 employees,
none of whom is a party to a collective bargaining agreement.
Post Properties, Inc. (the "Company"), a self-administered and self-managed
equity real estate investment trust, is the sole general partner of, and
controls a majority of the limited partnership interests in, the Operating
Partnership. As of June 30, 1996, the Company owned 81.1% of the outstanding
partnership interests in the Operating Partnership. The Company conducts all its
business through the Operating Partnership and its subsidiaries.
THE COMMUNITIES
As of September 1, 1996, the Communities consisted of 46 stabilized Post(R)
multifamily apartment communities located in the following metropolitan areas:
<TABLE>
<CAPTION>
NUMBER PERCENT
METROPOLITAN AREA COMMUNITIES OF UNITS OF TOTAL
--------------------------------------------------------- ----------- -------- --------
<S> <C> <C> <C>
Atlanta, GA.............................................. 33 12,352 72.0%
Tampa, FL................................................ 7 2,262 13.2
Orlando, FL.............................................. 2 1,248 7.3
Fairfax, VA.............................................. 2 700 4.1
Pompano Beach, FL........................................ 1 416 2.4
Nashville, TN............................................ 1 166 1.0
-- ------ -----
46 17,144 100.0%
== ====== =====
</TABLE>
The Operating Partnership developed and currently manages all of the
Communities. Thirty-two of the Communities have in excess of 300 apartment
units, with the largest Community having a total of 810 apartment units. As of
September 1, 1996, the average age of the Communities was seven years and 41 of
the 46 Communities, comprising approximately 90.9% of the total number of the
Communities' apartment units, were completed after January 1, 1986.
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<PAGE> 4
THE OFFERING
All capitalized terms used herein and not defined herein have the meanings
provided in "Description of the Notes." For a more complete description of the
terms of the Notes specified in the following summary, see "Description of the
Notes."
Securities Offered......... $100,000,000 aggregate principal amount of %
Notes due 2003.
Maturity................... The Notes will mature on , 2003.
Interest Payment Dates..... Interest on the Notes is payable semi-annually on
each and , commencing
, 1997, and at maturity.
Ranking.................... The Notes will rank pari passu with all other
unsecured and unsubordinated indebtedness of the
Operating Partnership and the Notes will be
effectively subordinated to the prior claims of
each secured mortgage lender to any specific
Community which secures such lender's mortgage. As
of June 30, 1996, such mortgages aggregated
approximately $182.4 million and such unsecured and
unsubordinated indebtedness aggregated
approximately $239.0 million (approximately $239.9
million on a pro forma basis). See
"Capitalization."
Use of Proceeds............ The net proceeds to the Operating Partnership from
the Offering (approximately $99.1 million) will be
used to pay down existing indebtedness under the
Company's revolving line of credit.
Limitations on Incurrence
of Debt.................... The Notes contain various covenants, including the
following:
(1) The Operating Partnership will not incur any
Debt if, after giving effect thereto, the
aggregate principal amount of all outstanding
Debt of the Operating Partnership is greater
than 60% of the sum of (i) the Operating
Partnership's Total Assets as of the end of the
most recent fiscal quarter and (ii) the
increase in the Operating Partnership's Total
Assets since the end of such quarter including
any increase in the Operating Partnership's
Total Assets resulting from the incurrence of
such additional Debt (such increase together
with the Operating Partnership's Total Assets
is referred to as "Adjusted Total Assets").
(2) The Operating Partnership will not incur any
Secured Debt if, after giving effect thereto,
the aggregate amount of all outstanding Secured
Debt of the Operating Partnership is greater
than 40% of the Operating Partnership's
Adjusted Total Assets.
(3) The Operating Partnership will not incur any
Debt if Consolidated Income Available for Debt
Service for the four consecutive fiscal
quarters most recently ended prior to the date
of the incurrence of such Debt, on a pro forma
basis, would be less than 1.5 times the Annual
Debt Service Charge on all Debt outstanding
immediately after the incurrence of such
additional Debt.
(4) The Operating Partnership will maintain Total
Unencumbered Assets of not less than 150% of
the aggregate outstanding principal amount of
the Unsecured Debt of the Operating
Partnership.
Optional Redemption........ The Notes are redeemable at any time at the option
of the Operating Partnership, in whole or in part,
at a redemption price equal to the sum of (i) the
principal amount of the Notes being redeemed plus
accrued interest to the redemption date and (ii)
the Make-Whole Amount, if any. See "Description of
the Notes -- Optional Redemption."
S-4
<PAGE> 5
BUSINESS AND COMMUNITIES
The Operating Partnership is managed by its general partner, the Company, a
self-administered and self-managed equity REIT that was founded in 1971 and
since inception has focused on the development, management, and ownership of
upscale multifamily apartment communities, primarily in metropolitan Atlanta,
Georgia. During the last nine years, the Operating Partnership has expanded its
focus to include metropolitan Tampa, Florida, other Florida markets, Nashville,
Tennessee, Charlotte, North Carolina and Fairfax County, Virginia. The Operating
Partnership and its affiliates have developed a total of 71 Post(R) upscale
garden and mid-rise apartment communities containing approximately 22,726
apartment units. Of these communities, 46 comprising 17,144 apartment units are
owned by the Operating Partnership in fee simple or pursuant to a long-term
ground lease, and are operated by the Operating Partnership. The Operating
Partnership and affiliates have sold 26 communities between 1972 and 1996 to
parties not affiliated with the Operating Partnership, two of which the
Operating Partnership continues to manage under the Post(R) brand name. Three
contiguous Atlanta apartment communities containing a total of 810 units which
the Operating Partnership developed in the early 1980s and sold in 1986 have
been reacquired and are currently operated as one community, Post Creek(TM). The
Operating Partnership's executive offices are located at 3350 Cumberland Circle,
Atlanta, Georgia 30339 and its telephone number is (770) 850-4400.
The Operating Partnership has benefitted, and expects to continue to
benefit, from the following competitive advantages:
- Implementing distinctive core business strategies: investment building,
promotion of the Post(R) brand name and a service orientation.
- Demonstrating a consistent record of operating performance.
- Promoting growth through maintenance of a disciplined development
philosophy in superior primary markets.
- Maintaining a flexible and conservative capital structure to provide
continued access to capital markets on favorable terms.
- Investing in upscale multifamily communities of a quality level
synonymous with the Post(R) brand name reputation.
DISTINCTIVE CORE BUSINESS STRATEGIES. The Operating Partnership benefits
from the pursuit of three distinctive core business strategies that, for almost
25 years, have remained substantially unchanged:
Investment Building. Investment building means taking a long-term
view of the assets the Operating Partnership creates. The Operating
Partnership develops communities with the intention of owning and operating
them for periods that are relatively long by the standard of the apartment
industry.
- The Operating Partnership's approach to development activities has
been characterized by a solid record of building apartment communities
on time, and with a uniformly high quality.
- Since 1988, the Operating Partnership has focused its strategy on a
limited number of markets that have shown and are forecasted to
continue to show employment, population and household formation growth
that generally exceed national averages. Within these limited markets,
the Operating Partnership has focused on building in infill, mature
locations, where land for competing uses is scarce.
- The Operating Partnership uses a disciplined team approach to
development decisions. Both the development division and the management
division are involved in the process by which a potential development
site is evaluated, the market is analyzed, the product is designed, and
both construction and operating feasibility are assessed.
- The Operating Partnership conducts an annual asset maintenance
program, which involves an annual review of each apartment community.
In addition, the Operating Partnership conducts a regular periodic
program of preventative maintenance in each apartment unit pursuant to
which
S-5
<PAGE> 6
appliances, heating and cooling systems and apartment interiors are
inspected, cleaned and serviced or repaired, as appropriate, at least
two times per year. The Operating Partnership believes that these
programs lower operating costs over the life of the Communities,
increase the long-term value of the Communities and contribute to
maintaining the upscale market position of the Communities.
Promotion of the Post(R) Brand Name. The Post(R) brand name strategy
is widely known and admired within the Operating Partnership's primary
markets and, to the knowledge of the Operating Partnership, has not been
successfully duplicated within the multifamily real estate industry in any
major U.S. market. For such a strategy to be effective, a company must
develop and implement systems to achieve uniformity, outstanding quality
and value through its operations.
- The Operating Partnership exclusively owns the federally registered
Post(R) service and trade marks, which it uses extensively in the
marketing of its Communities.
- The Post(R) brand name is synonymous with quality upscale apartment
communities which are situated in desirable locations and provide
superior resident service. This has been achieved in part by the
Operating Partnership's strategy of developing a superior product in
established infill locations.
- The Operating Partnership believes that a comprehensive program for
continuing training of all employees and a commitment to "promoting
from within" enhance the performance of the Operating Partnership's
personnel and reduce employee turnover. Bonuses and other financial
incentives, motivational seminars and Operating Partnership-wide
recognition programs also promote employee performance. The Operating
Partnership has created professional, long-term career paths for its
employees, especially for its field personnel (such as construction
managers, leasing consultants and landscape field employees). The
Operating Partnership believes that time spent at its Communities by
"main office" employees provides valuable information and experience
for employees throughout its organization.
- The Operating Partnership coordinates its advertising programs to
increase brand name recognition in its primary markets and to attract a
more desirable resident profile.
A Service Orientation. The Operating Partnership's mission statement
is: "To provide the superior apartment living experience for our
residents." A superior product delivered with superior service is the
surest way to achieve the Operating Partnership's long-term goals. The
Post(R) brand name has great value because of the Operating Partnership's
dedication to and success in carrying out its mission statement.
CONSISTENT OPERATING PERFORMANCE. The successful implementation of the
Operating Partnership's distinctive core business strategies accounts for the
Operating Partnership's consistent operating performance. Focus on the
operations of the existing portfolio, adherence to a disciplined development
philosophy and a continuing focus on quality and service are necessary to
realize consistent, sustained earnings growth. The Operating Partnership's
operating performance demonstrates the successful implementation of its
operating approach:
- Average economic occupancy of communities stabilized for both the current
and prior respective periods was 96.0%, 96.4% and 94.7% for the years
ended December 31, 1995, 1994 and 1993, respectively, and 95.5% and 96.0%
for the six months ended June 30, 1996 and 1995, respectively.
- Rental revenues have steadily increased from $104.5 million in 1993 to
$115.3 million in 1994 and $133.8 million in 1995, increases of 10.3% and
16.0%, respectively. Rental revenues continued to increase during the
first half of 1996, increasing from $63.9 million for the six months ended
June 30, 1995 to $75.6 million for the six months ended June 30, 1996, an
increase of 18.3%.
- Direct property operating expenses as a percentage of rental revenues
have steadily decreased from 39.4% in 1993 to 37.6% in 1994 and 37.3% in
1995, decreases of 4.6% and 0.8%, respectively, and continued to decrease
in the first half of 1996 from 37.9% at June 30, 1995 to 36.0% at June 30,
1996, a decrease of 5.0%.
S-6
<PAGE> 7
- Funds from Operations ("FFO") increased 12.1%, on a per Operating
Partnership unit basis, from the year ended December 31, 1994 to the year
ended December 31, 1995 and 13.7%, on a per Operating Partnership unit
basis, from the six months ended June 30, 1995 to the six months ended
June 30, 1996. FFO for any period means the Consolidated Net Income of the
Operating Partnership and its Subsidiaries for such period excluding gains
or losses from debt restructuring and sales of property, plus depreciation
of real estate assets, and after adjustment for unconsolidated
partnerships and joint ventures, all determined on a consistent basis in
accordance with generally accepted accounting principles.
- The Operating Partnership's payout ratio, based on FFO, has decreased
from 83.7% to 81.3% for the years ended December 31, 1994 and 1995,
respectively, and from 83.8% to 81.2% for the six months ended June 30,
1995 and 1996, respectively.
DEVELOPMENT PHILOSOPHY. The Operating Partnership uses a team approach to
development decisions. Both the development division and the management division
are involved in the process by which a potential development site is evaluated,
the market is analyzed, the product is designed, and both construction and
operating feasibility are assessed.
The Operating Partnership believes that multifamily properties in its
primary markets have the potential over the long term to provide investment
returns that exceed national averages. According to recent market surveys,
employment, population and household formation growth in the Operating
Partnership's primary markets have shown and are forecasted to continue to show
growth that generally exceeds national averages.
<TABLE>
<CAPTION>
EMPLOYMENT POPULATION HOUSEHOLD
GROWTH GROWTH GROWTH
MARKETS (1990-1995) (1990-1995) (1990-1995)
- ------------------------------------------------------------ ---------- ----------- -----------
<S> <C> <C> <C>
Atlanta..................................................... 18.6% 15.2% 16.4%
Nashville................................................... 18.9 10.6 11.7
Charlotte................................................... 13.7 10.3 12.0
Tampa Bay................................................... 13.1 5.0 6.0
Northern Virginia........................................... 9.3 9.0 10.5
Top 50 Metropolitan Statistical Areas....................... 7.1 9.2 9.6
</TABLE>
<TABLE>
<CAPTION>
EMPLOYMENT POPULATION HOUSEHOLD
GROWTH GROWTH GROWTH
MARKETS (1995-2005) (1995-2005) (1995-2005)
- ------------------------------------------------------------ ---------- ----------- -----------
<S> <C> <C> <C>
Atlanta..................................................... 29.1% 25.2% 28.1%
Nashville................................................... 31.3 21.9 25.0
Charlotte................................................... 27.7 23.4 23.7
Tampa Bay................................................... 28.1 16.0 18.6
Northern Virginia........................................... 16.2 18.8 22.2
Top 50 Metropolitan Statistical Areas....................... 13.1 9.4 10.7
</TABLE>
- ---------------
Source: For the historical data -- the U.S. Census Bureau (Population Growth and
Household Growth) and the U.S. Bureau of Labor Statistics (Employment Growth).
For the forecasted data -- Siegel & Associates (Northern Virginia) and Dr.
Donald Ratajczak of Georgia State University (Atlanta, Nashville, Charlotte,
Tampa Bay and Top 50 Metropolitan Statistical Areas).
In addition, the Operating Partnership expects that the multifamily housing
market in its primary markets will be positively affected by the following
trends: (i) lifestyle changes that are resulting in an older, more affluent and
more demanding renter; and (ii) a decline in home price appreciation in recent
years, which changes the economic advantages of home ownership. The Operating
Partnership believes that these trends will offset to some extent the general
trend of a decline in the growth rate of the adult population in the prime
rental population of 20-35 year olds and the current low interest rates for home
mortgages.
Within these primary markets, the Operating Partnership has concentrated on
building in infill, mature locations where land for competing uses is scarce.
The Operating Partnership believes this strategy reduces the
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<PAGE> 8
amount of potential competition faced by the Operating Partnership's apartment
communities and believes that these locations are more desirous places to live,
which enables the Operating Partnership to charge rents that result in higher
returns on costs. The Operating Partnership also believes that these sites have
a higher land appreciation over time.
FLEXIBLE AND CONSERVATIVE CAPITAL STRUCTURE. The Operating Partnership has
and plans to continue to maintain a flexible and conservative capital structure
that enhances its access to the capital markets on favorable terms and promotes
future earnings growth.
Since formation in July 1993, the Operating Partnership has concentrated on
enhancing its financial flexibility by improving its capital structure. The $180
million unsecured revolving line of credit (the "Revolver") with a bank
syndicate, the issuance of $50 million of unsecured senior notes to the
Northwestern Mutual Life Insurance Company (the "NML Notes"), the agreement with
the Federal National Mortgage Association ("FNMA") to provide credit enhancement
for the Operating Partnership's outstanding tax-exempt bonds (including
reissuance at maturity) and certain of its economically defeased bonds until
June 2025, the issuance of $50 million of unsecured senior notes to Wachovia
Bank of Georgia, N.A. (the "Wachovia Notes") and the $20 million unsecured
revolving line of credit with Wachovia Bank of Georgia, N.A. (the "Cash
Management Line") all demonstrate the Operating Partnership's successful efforts
to maintain a flexible and conservative capital structure.
The Operating Partnership's financial position reflects its conservative
financial strategy:
- As of June 30, 1996, the Operating Partnership had 33 Communities
unencumbered by mortgage debt with over $700 million of undepreciated book
value supporting the Operating Partnership's unsecured debt. Net operating
income from these unencumbered Communities as a percentage of total net
operating income for all Communities increased from 42.7% at June 30, 1995
to 63.9% at June 30, 1996.
- Since January 1, 1995, the Operating Partnership has greatly extended and
staggered debt maturities. FNMA has provided replacement credit
enhancement through 2025 for seven bond issues which were reissued, and
has agreed, subject to certain conditions, to provide credit enhancement
through June 1, 2025 with respect to eight other bond issues which mature
and may be refunded in 1996 through 1998. As of December 31, 1994, the
weighted average maturity of the Operating Partnership's debt was 2.0
years. At June 30, 1996, the weighted average maturity of the Operating
Partnership's debt had increased to 12.4 years. After giving effect to the
Offering, the Cash Management Line and the reissuance of the Post Canyon
and Post Corners bonds which matured and were refunded on July 1, 1996 and
August 1, 1996, respectively, the Operating Partnership's weighted average
maturity would have been 13.2 years.
- Total debt to total market capitalization ratio of 30.7% at June 30,
1996.
- Total debt as a percentage of undepreciated real estate assets of 40.7%
at June 30, 1996.
- Interest coverage for the six month period ending June 30, 1996 was 4.4x.
Management does not expect the interest coverage ratio to change
materially as a result of this Offering, as net proceeds from this
Offering will be used primarily to refinance interim debt with a current
interest rate comparable to the Notes.
MANAGEMENT EXPERIENCE IN DEVELOPING AND OPERATING UPSCALE MULTIFAMILY
APARTMENT COMMUNITIES. Since 1971, the Operating Partnership has developed a
total of 71 upscale garden and mid-rise apartment communities containing
approximately 22,726 apartment units. The Operating Partnership believes that
its unique business strategy and disciplined development philosophy have
produced the highest quality multifamily communities in its primary markets.
Uniform systems in construction, landscaping, and on-site management; superior
locations; superior asset quality; superior resident amenities and services;
luxurious landscaping; and a responsive 48-hour maintenance program are all
examples of the upscale nature of the Operating Partnership's multifamily
communities. See "The Communities." The 17 members of the Operating
Partnership's senior management team have an average tenure with the Operating
Partnership of 14 years. As
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<PAGE> 9
of August 1, 1996, the executive officers and directors of the Company owned
approximately 20.1% of the Common Stock of the Company assuming an exchange for
Common Stock of all Operating Partnership units.
THE COMMUNITIES
The Operating Partnership developed and currently manages all of the
Communities. Thirty-two of the Communities have in excess of 300 apartment
units, with the largest Community having a total of 810 apartment units. As of
September 1, 1996, the average age of the Communities was seven years and 41 of
the 46 Communities, comprising approximately 90.9% of the total number of the
Communities' apartment units, were completed after January 1, 1986.
The average economic occupancy rate for Communities stabilized for the six
months ended June 30,1996 was 95.6% and the average monthly rental rate per
apartment unit at these Communities for the same period was $745. A Community is
considered by the Operating Partnership to have achieved stabilized occupancy on
the earlier to occur of (i) attainment of 95% physical occupancy on the first
day of any month or (ii) one year after completion of construction.
COMMUNITY INFORMATION
<TABLE>
<CAPTION>
AVERAGE ECONOMIC
OCCUPANCY FOR
THE
YEAR AVERAGE JUNE 1996 SIX MONTHS
COMPLETED/ UNIT SIZE NUMBER AVERAGE RENTAL ENDED
COMMUNITY LOCATION(1) ACQUIRED (SQUARE FEET) OF UNITS RATE PER UNIT JUNE 30, 1996(2)
- -------------------------------- ----------- ---------- ------------- -------- -------------- ----------------
<S> <C> <C> <C> <C> <C> <C>
GEORGIA
Post Ashford(R)................. Atlanta 1987 872 222 $ 745 97.5%
Post Bridge(R).................. Atlanta 1986 847 354 646 95.9
Post Brook(R)................... Atlanta 1984 916 130 749 99.0
Post Brookhaven(R).............. Atlanta 1990-92 (3) 991 735 934 96.9
Post Canyon(R).................. Atlanta 1986 899 494 690 93.5
Post Chase(R)................... Atlanta 1987 938 410 687 95.3
Post Chastain(R)................ Atlanta 1990 965 558 959 96.7
Post Corners(R)................. Atlanta 1986 860 460 662 95.3
Post Court(R)................... Atlanta 1988 838 446 667 96.1
Post Creek(TM)(4)............... Atlanta 1996 1,180 810 867 N/A
Post Crossing(R)................ Atlanta 1995 1,067 354 1,034 95.1
Post Dunwoody(R)(5)............. Atlanta 1989 941 530 837 92.8
Post Lane(R).................... Atlanta 1988 840 166 701 97.5
Post Lenox Park(TM)............. Atlanta 1995 1,030 206 1,034 97.6
Post Mill(R).................... Atlanta 1985 952 398 695 98.1
Post Oak(TM).................... Atlanta 1993 1,003 182 923 98.8
Post Oglethorpe(R).............. Atlanta 1994 1,205 250 1,204 96.7
Post Park(R).................... Atlanta 1988-90 (3) 904 770 781 94.0
Post Parkwood(TM)............... Atlanta 1995 1,071 125 908 99.3
Post Peachtree Hills(R)......... Atlanta 1992-94 (3) 982 300 952 99.3
Post Pointe(R).................. Atlanta 1988 835 360 647 94.5
Post Renaissance(R)(6).......... Atlanta 1992-94 (3) 890 342 877 99.4
Post River(R)................... Atlanta 1991 983 125 1,132 93.9
Post Summit(R).................. Atlanta 1990 957 148 810 97.1
Post Valley(R).................. Atlanta 1988 854 496 644 97.2
Post Village(R)................. Atlanta 906 704 94.4
The Arbors.................... 1983 1,063 301
The Fountains................. 1987 850 352
The Gardens................... 1986 891 494
The Hills..................... 1984 953 241
The Meadows................... 1988 817 350
Post Vinings(R)................. Atlanta 1989-91 (3) 964 403 778 94.7
Post Walk(R).................... Atlanta 1987 932 346 785 97.0
Post Woods(R)................... Atlanta 1977-83 (3) 1,057 494 810 98.7
----- ----- ------ ----
Subtotal -- Atlanta..... 942 12,352 799 96.1
----- ----- ------ ----
</TABLE>
S-9
<PAGE> 10
<TABLE>
<CAPTION>
AVERAGE ECONOMIC
OCCUPANCY FOR
THE
YEAR AVERAGE JUNE 1996 SIX MONTHS
COMPLETED/ UNIT SIZE NUMBER AVERAGE RENTAL ENDED
COMMUNITY LOCATION(1) ACQUIRED (SQUARE FEET) OF UNITS RATE PER UNIT JUNE 30, 1996(2)
- -------------------------------- ----------- ---------- ------------- -------- -------------- ----------------
<S> <C> <C> <C> <C> <C> <C>
FLORIDA
Post Bay(R)..................... Tampa 1988 782 312 650 96.8
Post Court(R)................... Tampa 1991 1,018 228 737 92.9
Post Crossing(R)(7)............. Pompano 1989 847 416 763 93.8
Post Fountains(TM).............. Orlando 1988 835 508 574 92.7
Post Hyde Park(R)............... Tampa 1996 1,009 270 897 N/A
Post Lake(R).................... Orlando 1988 850 740 604 95.0
Post Rocky Point(R)............. Tampa 1996 1,018 452 845 N/A
Post Village(R)................. Tampa 941 706 92.7
The Arbors.................... 1991 967 304
The Lakes..................... 1989 895 360
The Oaks...................... 1991 968 336
----- ----- ------ ----
Subtotal -- Florida..... 921 3,926 702 93.9
----- ----- ------ ----
VIRGINIA
Post Corners(R) at Trinity
Centre........................ Fairfax 1996 1,030 336 $ 919 N/A
Post Forest(R).................. Fairfax 1990 889 364 872 92.0
----- ----- ------ ----
Subtotal -- Virginia.... 960 700 894 92.0
----- ----- ------ ----
TENNESSEE
Post Green Hills(R)............. Nashville 1996 1,056 166 1,078 N/A
----- ----- ------ ----
Total................... 970 17,144 $ 824 95.6%(8)
===== ===== ====== ====
</TABLE>
- ---------------
(1) Refers to greater metropolitan areas of cities indicated.
(2) Average economic occupancy is defined as gross potential rent less vacancy
losses, model expenses and bad debt divided by gross potential rent for the
period, expressed as a percentage. Includes only communities which were
stabilized for the entire period.
(3) These dates represent the respective completion dates for multiple phases of
a Community.
(4) On May 7, 1996, the Operating Partnership reacquired three contiguous
Atlanta apartment communities containing a total of 810 units which the
Operating Partnership developed in the early 1980's and managed under the
Post(R) brand name through mid-1993. The Operating Partnership's capital
investment, including expenditures to add perimeter fencing and steel entry
gates and construction of a new centralized leasing office, will be
approximately $48 million. The community was previously operated as
Dunwoody Crossing and, following the Operating Partnership's purchase, has
been operated as Post Creek(TM). Average economic occupancy for Post
Creek(TM) from May 7, 1996 through June 30, 1996 was 88.0%.
(5) Average economic occupancy rate for the first phase of the Community.
(6) The Operating Partnership has a leasehold interest in the land underlying
Post Renaissance(R) pursuant to a ground lease that expires on January 1,
2040. The Operating Partnership owns the remaining Communities in fee
simple.
(7) Currently listed for sale.
(8) Includes Post Gardens(R) which was sold on July 19, 1996. The average
economic occupancy for the six months ended June 30, 1996 for Post Gardens
was 96.1%.
S-10
<PAGE> 11
RECENT DEVELOPMENTS
DEVELOPMENT ACTIVITY
As of September 1, 1996, the Operating Partnership had under construction
or in initial lease-up nine new communities that will contain an aggregate of
3,276 units. The Operating Partnership's communities under development or in
initial lease-up are summarized in the following chart:
<TABLE>
<CAPTION>
ESTIMATED
ACTUAL OR QUARTER UNITS LEASED
NUMBER QUARTER OF ESTIMATED QUARTER OF AS OF
OF CONSTRUCTION FIRST UNITS STABILIZED SEPTEMBER 7,
METROPOLITAN AREA UNITS COMMENCEMENT AVAILABLE OCCUPANCY 1996
---------------------------- ------ ------------ ----------------- --------- ------------
<S> <C> <C> <C> <C> <C>
ATLANTA, GA
Post Terrace(R)............. 296 2Q'95 1Q'96 4Q'96 296
Post Crest(R)............... 410 1Q'95 1Q'96 1Q'97 340
Post Collier Hills(TM)...... 392 4Q'95 4Q'96 4Q'97 N/A
Post Glen(R)................ 312 1Q'96 1Q'97 1Q'98 N/A
Post Gardens(R)............. 397 3Q'96 3Q'97 3Q'98 N/A
Post Lindbergh(TM).......... 396 3Q'96 3Q'97 3Q'98 N/A
Riverside Village by
Post(TM).................. 537 3Q'96 4Q'97 1Q'99 N/A
----- ----
2,740 636
----- ----
TAMPA, FL
Post Walk at Hyde
Park(TM).................. 134 1Q'96 4Q'96 3Q'97 N/A
----- ----
CHARLOTTE, NC
Post Park at Phillips
Place(TM)................. 402 4Q'95 4Q'96 4Q'97 N/A
----- ----
3,276 636
===== ====
</TABLE>
The Operating Partnership has also acquired two parcels, one in Tampa and
one in Atlanta, on which it plans to build new communities. Construction is
expected to begin on the Tampa parcel in the fourth quarter of 1996. The Home
Depot, Inc. is constructing its corporate headquarters campus and extensive
infrastructure improvements are being made by the county adjacent to the Atlanta
parcel. The Operating Partnership will review its development plan for this
parcel closer to completion of these improvements. The Operating Partnership is
also currently conducting feasibility and other pre-development studies for
possible new Post(R) communities in its primary market areas. In addition, the
Operating Partnership continually reviews acquisition opportunities in its
primary market areas.
ACQUISITION ACTIVITY
On May 7, 1996, the Operating Partnership reacquired three contiguous
Atlanta apartment communities containing a total of 810 units which the
Operating Partnership developed in the early 1980's and managed under the
Post(R) brand name through mid-1993. The Operating Partnership's capital
investment, including planned expenditures to add perimeter fencing and steel
entry gates and construction of a new centralized leasing office, will be
approximately $48 million. At the time of acquisition the community was operated
as Dunwoody Crossing and is now operated by the Operating Partnership as Post
Creek(TM).
On August 26, 1996, the Operating Partnership acquired a 3.2 acre tract of
land in Nashville, Tennessee, with two existing apartment buildings containing
101 units (the "Vanderbilt Washington Apartments") and a 1.1 acre tract of land
in Nashville, Tennessee, with one existing apartment building containing 80
units. The Operating Partnership also has two tracts of land adjacent to the
Vanderbilt Washington Apartments under contract and expects to close on the
purchase of those two tracts early in November. In early 1997, the Vanderbilt
Washington Apartments will be completely renovated and additional apartment
buildings will be built on the two tracts under contract, with the entire
development being operated as one apartment community.
S-11
<PAGE> 12
DISPOSITION ACTIVITY
In April 1996 the Operating Partnership listed two communities in Florida,
containing a total of 596 units, for sale. On July 19, 1996, one of the
communities, containing 180 units, was sold. Post Crossing remains listed for
sale. These dispositions are consistent with the Company's strategy of selling
communities when the market demographics for a community are no longer
consistent with the Company's existing ownership strategy.
FINANCING ACTIVITY
Pursuant to the agreement with FNMA to provide credit enhancement for
certain tax-exempt bonds, on July 1, 1996 and August 1, 1996, the Operating
Partnership refunded two bonds with issues having a maturity of June 1, 2025 and
an interest rate of SunTrust Non-AMT "AAA" tax free rate plus a credit
enhancement fee of .575%.
On July 26, 1996, the Operating Partnership closed the $20 million Cash
Management Line with Wachovia Bank of Georgia, N.A. See "Management's Discussion
and Analysis of Financial Condition and Results of Operations -- Liquidity and
Capital Resources."
USE OF PROCEEDS
The net cash proceeds to the Operating Partnership from the sale of the
Notes offered hereby are expected to be approximately $99,100,000. The Operating
Partnership expects to use the net proceeds to pay down existing indebtedness
currently outstanding on the Company's Revolver. The Revolver terminates on May
1, 1999 and borrowings thereunder bear interest, at the option of the Operating
Partnership, at LIBOR plus .80% or prime minus .25%. As of September 1, 1996,
interest accrued on borrowings outstanding under the Revolver at a weighted
average interest rate of 6.23% per annum.
S-12
<PAGE> 13
CAPITALIZATION
The following table sets forth the capitalization of the Operating
Partnership as of June 30, 1996 and as adjusted to give effect to the issuance
and sale of the Notes and the application of the net proceeds therefrom as
described above under the caption "Use of Proceeds". The information set forth
in the following table should be read in conjunction with the financial and
other information included elsewhere and incorporated by reference in this
Prospectus Supplement and the Prospectus.
<TABLE>
<CAPTION>
JUNE 30, 1996
------------------------
HISTORICAL AS ADJUSTED
---------- -----------
(IN THOUSANDS)
<S> <C> <C>
DEBT:
Lines of Credit....................................................... $ 139,000 $ 39,900
Notes payable......................................................... 282,378 282,378
% Notes due 2003................................................... -- 100,000
-------- --------
Total Debt.................................................... $ 421,378 $ 422,278
-------- --------
PARTNERS' CAPITAL:
General partner's interest............................................ $ 4,649 $ 4,649
Limited partners' interest............................................ 420,941 420,941
-------- --------
Total partners' capital....................................... 425,590 425,590
-------- --------
Total capitalization.......................................... $ 846,968 $ 847,868
======== ========
</TABLE>
S-13
<PAGE> 14
SELECTED FINANCIAL INFORMATION
(DOLLARS IN THOUSANDS)
The following table sets forth certain financial and operating information
for (i) the Operating Partnership and its subsidiaries, for periods after the
initial public offering (completed on July 22, 1993) of the Company (the
"Initial Offering") and (ii) the portfolio of 40 Post(R) multifamily apartment
communities (the "Initial Properties") and other assets transferred to the
Operating Partnership and its subsidiaries in connection with the business
combination effected at the time of the Initial Offering (the "Formation
Transactions"), for periods prior to the Initial Offering. The financial
information of the Operating Partnership and predecessor for each of the five
years in the five year period ended December 31, 1995 have been derived from the
Operating Partnership's financial statements audited by Price Waterhouse LLP,
independent accountants. The consolidated financial information of the Operating
Partnership for the six months ended June 30, 1996 and 1995 have been derived
from the consolidated quarterly unaudited financial statements of the Operating
Partnership. In the opinion of management, the operating data for the six months
ended June 30, 1996 and 1995 include all adjustments (consisting only of normal
recurring adjustments) necessary to present fairly the information set forth
therein. The results of operations for the six months ended June 30, 1996 are
not necessarily indicative of results that may be expected for the full year.
The following should be read in conjunction with Management's Discussion and
Analysis of Financial Condition and Results of Operations and all of the
financial statements and notes thereto included and incorporated by reference in
this Prospectus Supplement and the Prospectus.
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30, YEAR ENDED DECEMBER 31,
----------------- ----------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
------- ------- -------- -------- -------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
OPERATING DATA:
Revenue:
Rental............................. $75,569 $63,877 $133,817 $115,309 $104,482 $ 94,754 $ 85,688
Property management -- third
party(1)......................... 1,466 1,216 2,764 2,508 3,057 2,793 2,296
Landscape services -- third
party(1)......................... 2,221 2,149 4,647 3,799 3,829 2,240 1,794
Other.............................. 2,527 1,571 3,477 3,123 2,879 2,750 2,581
------- ------- -------- -------- -------- -------- --------
Total revenues.............. 81,783 68,813 144,705 124,739 114,247 102,537 92,359
Property operating and maintenance
expense (exclusive of depreciation
and amortization).................. 27,169 24,212 49,912 43,376 41,209 39,080 35,626
Depreciation (real estate assets).... 10,796 10,128 20,127 19,967 19,427 19,085 19,172
Depreciation (non-real estate
assets)............................ 513 221 692 241 303 195 235
Property management -- third
party(1)........................... 1,050 1,033 2,166 2,229 2,453 2,057 1,518
Landscape services -- third
party(1)........................... 1,863 1,754 3,950 3,098 3,151 1,998 1,544
Interest............................. 10,768 10,836 22,698 19,231 34,309 41,548 43,074
Amortization of deferred loan costs,
interest rate protection agreement
and swap gain, net................. 732 996 1,967 1,999 969 2,105 2,920
General and administrative........... 4,017 2,760 6,071 6,269 4,384 5,015 3,987
Formation Transaction expense........ -- -- -- -- 2,783 -- --
Minority interest in consolidated
property partnership(2)............ -- 382 451 680 692 655 617
------- ------- -------- -------- -------- -------- --------
Income (loss) before gain on sale of
real estate assets, net of income
taxes and extraordinary item....... 24,875 16,491 36,671 27,649 4,567 (9,201) (16,334)
Gain on sale of real estate assets,
net of income taxes................ -- -- 1,746 1,494 -- -- --
------- ------- -------- -------- -------- -------- --------
Income (loss) before extraordinary
item............................... 24,875 16,491 38,417 29,143 4,567 (9,201) (16,334)
Extraordinary item(3)................ -- (803) (1,120) (4,413) (13,628) -- --
------- ------- -------- -------- -------- -------- --------
Net income (loss).................... $24,875 $15,688 $ 37,297 $ 24,730 $ (9,061) $ (9,201) $(16,334)
======= ======= ======== ======== ======== ======== ========
</TABLE>
S-14
<PAGE> 15
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
--------------------- ----------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
---------- -------- -------- -------- -------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Real estate, before accumulated
depreciation.................... $1,034,809 $895,807 $937,924 $828,585 $722,266 $616,289 $588,416
Real estate, net of accumulated
depreciation.................... 866,829 742,883 781,100 686,009 599,898 513,651 505,058
Total assets...................... 892,590 780,804 812,984 710,973 627,322 536,961 527,498
Total debt........................ 421,378 420,781 349,719 362,045 357,809 540,900 519,538
Partners' and owners' equity
(deficit)....................... 425,590 319,344 425,489 313,367 246,342 (25,812) (9,050)
</TABLE>
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30, YEAR ENDED DECEMBER 31,
----------------------- ----------------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
---------- ---------- ---------- ---------- ---------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
OTHER DATA:
Cash flow provided from
(used in):
Operating activities...... $ 43,408 $ 33,856 $ 57,366 $ 43,819 $ 2,412 $ 11,400 $ 6,373
Investing activities...... $ (98,170) $ (67,606) $ (114,531) $ (99,364) $ (51,152) $(28,696) $(43,555)
Financing activities...... $ 47,378 $ 49,262 $ 60,881 $ 46,496 $ 49,647 $ 19,902 $ 31,600
Funds from operations(4).... $ 35,671 $ 26,619 $ 56,798 $ 47,616 $ 26,777 $ 9,884 $ 2,838
Consolidated Income
Available for Debt
Service(5)................ $ 47,684 $ 39,054 $ 82,606 $ 69,767 $ 60,267 $ 54,387 $ 49,684
Debt Service Coverage(6).... 4.4x 3.6x 3.6x 3.6x 1.8x 1.3x 1.2x
Weighted average Operating
Partnership Units
outstanding............... 26,818,135 22,684,488 23,541,639 22,125,890 13,574,767 N/A N/A
Total stabilized communities
(at end of period)........ 47 42 42 42 41 40 38
Total stabilized apartment
units (at end of
period)................... 16,996 15,051 14,962 14,845 14,270 14,088 13,532
Average economic occupancy
(stabilized
communities)(7)........... 95.5% 96.0% 96.0% 96.4% 94.7% 93.0% 92.8%
</TABLE>
- ---------------
(1) Consists of revenues and expenses from property management and landscape
services provided to properties owned by third parties (including services
provided to third-party owners of properties previously developed and sold
by the Operating Partnership that operate under the Post(R) name).
(2) Relates to the 49.99% interest in Post Woods(R) not owned by the Operating
Partnership. On September 1, 1995, the Operating Partnership purchased the
49.99% interest in Post Woods(R). Prior to the purchase, the Operating
Partnership owned 50.01% interest.
(3) The extraordinary items resulted from costs associated with the early
extinguishment of indebtedness.
(4) The Operating Partnership uses the National Association of Real Estate
Investment Trust ("NAREIT") definition of FFO, which was adopted for
periods beginning after January 1, 1996. FFO for any period means the
Consolidated Net Income of the Operating Partnership and its Subsidiaries
for such period excluding gains or losses from debt restructuring and sales
of property, plus depreciation of real estate assets, and after adjustment
for unconsolidated partnerships and joint ventures, all determined on a
consistent basis in accordance with generally accepted accounting
principles ("GAAP"). FFO presented herein is not necessarily comparable to
FFO presented by other real estate companies due to the fact that not all
real estate companies use the same definition. However, the Operating
Partnership's FFO is comparable to the FFO of real estate companies that
use the current NAREIT definition. FFO should not be considered as an
alternative to net income (determined in accordance with GAAP) as an
indicator of the Operating Partnership's financial performance or to cash
flow from operating activities (determined in accordance with GAAP) as a
measure of the Operating Partnership's liquidity, nor is it necessarily
indicative of sufficient cash flow to fund all of the Operating
Partnership's needs or ability to service indebtedness or make
distributions.
(5) Consolidated Income Available for Debt Service (as defined in the Indenture)
represents earnings before interest, income taxes, depreciation and
amortization and extraordinary items. Consolidated Income Available for
Debt Service is relevant to an understanding of the economics of the
Operating Partnership
S-15
<PAGE> 16
because it indicates cash flow available from the operations of the
Operating Partnership to service fixed obligations. Consolidated Income
Available for Debt Service should not be considered as an alternative to
net income, as determined in accordance with GAAP, as an indicator of the
Operating Partnership's operating performance, or to cash flows from
operating activities, as determined in accordance with GAAP, as a measure
of liquidity.
(6) Debt Service Coverage is defined as Consolidated Income Available for Debt
Service divided by interest expense.
(7) Amount represents average economic occupancy for communities stabilized for
both the current and prior respective periods. Average economic occupancy
is defined as gross potential rent less vacancy losses, model expenses and
bad debt divided by gross potential rent for the period, expressed as a
percentage. The calculation of average economic occupancy does not include
a deduction for concessions and employee discounts. (Average economic
occupancy, including these amounts would have been 95.0% and 95.5% for the
six months ended June 30, 1996 and 1995, respectively, and 95.5% for the
year ended December 31, 1995.) For the six months ended June 30, 1996 and
1995 and the year ended December 31, 1995, concessions were $143, $141 and
$296, respectively, and employee discounts were $136, $122 and $213,
respectively. A community is considered by the Operating Partnership to
have achieved stabilized occupancy on the earlier to occur of (i)
attainment of 95% physical occupancy on the first day of any month (ii) one
year after completion of construction.
S-16
<PAGE> 17
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT APARTMENT UNIT DATA)
OVERVIEW
The following discussion should be read in conjunction with all of the
financial statements appearing elsewhere and incorporated by reference into this
Prospectus Supplement. The following discussion is based primarily on the
Consolidated Financial Statements of Post Apartment Homes, L.P.
As of June 30, 1996, there were 26,859,783 Operating Partnership Units
outstanding, of which 21,774,940, or 81.1%, were owned by the Company and
5,084,843, or 18.9%, were owned by other limited partners ( including certain
officers and directors of the Company).
The Operating Partnership's net income is generated primarily from the
operation of its apartment communities. For purposes of evaluating comparative
operating performance, the Operating Partnership categorizes its operating
communities based on the period each community reaches stabilized occupancy. A
community is generally considered by the Operating Partnership to have achieved
stabilized occupancy on the earlier to occur of (i) attainment of 95% physical
occupancy on the first day of any month or (ii) one year after completion of
construction.
For communities with respect to which construction is completed and the
community has become fully operational, all property operating and maintenance
expenses are expensed as incurred and those recurring and non-recurring
expenditures relating to acquiring new assets, materially enhancing the value of
an existing asset, or substantially extending the useful life of an existing
asset are capitalized. (See "Capitalization of Fixed Assets and Community
Improvements").
The Operating Partnership has adopted an accounting policy related to
communities in the development and lease-up stage whereby substantially all
operating expenses (including pre-opening marketing expenses) are expensed as
incurred. The Operating Partnership treats each unit in an apartment community
separately for cost accumulation, capitalization and expense recognition
purposes. Prior to the commencement of leasing activities, interest and other
construction costs are capitalized and reflected on the balance sheet as
construction in progress. Once a unit is placed in service, all operating
expenses allocated to that unit, including interest, are expensed as incurred.
During the lease-up phase, the sum of interest expense on completed units and
other operating expenses (including pre-opening marketing expenses) will
typically exceed rental revenues, resulting in a "lease-up deficit," which
continues until such time as rental revenues exceed such expenses.
Therefore, in order to evaluate the operating performance of its
communities, the Operating Partnership has presented financial information which
summarizes the operating income on a comparative basis for all of its operating
communities combined and for communities which have reached stabilization prior
to January 1, 1995. The Operating Partnership has also presented quarterly
financial information reflecting the dilutive impact of lease-up deficits
incurred for communities in the development and lease-up stage and not yet
operating at break-even. In this presentation, only those communities which were
dilutive during the period are included and, accordingly, different communities
may be included in each period.
RESULTS OF OPERATIONS FOR THE SIX MONTHS ENDED JUNE 30, 1996, AND 1995
The Operating Partnership recorded net income of $24,875 for the six months
ended June 30, 1996, an increase of $9,187 over the prior corresponding period
primarily as a result of increased rental rates for fully stabilized communities
and an increase in apartment units placed in service.
COMMUNITY OPERATIONS
At June 30, 1996, the Operating Partnership's portfolio of apartment
communities consists of thirty-seven communities and the first phase of two
additional communities which were completed and stabilized for all of the
current and prior year, three communities and the second phase of an existing
community which achieved
S-17
<PAGE> 18
full stabilization during the prior year, four communities and the second phase
of an existing community which reached stabilization during 1996, one community
which was acquired during 1996 and six communities in the development or
lease-up stage.
ALL OPERATING COMMUNITIES
The operating performance for all of the Operating Partnership's apartment
communities combined for the three and six months ended June 30, 1996 and 1995
is summarized as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
--------------------------- ---------------------------
1996 1995 %CHANGE 1996 1995 %CHANGE
------- ------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C>
Rental and other revenue:
Fully stabilized
communities(1).............. $31,500 $29,880 5.4% $62,569 $59,214 5.7%
Communities stabilized during
1995........................ 2,351 1,518 54.9% 4,647 2,279 103.9%
Acquired communities(2)........ 1,115 -- N/A 1,115 -- N/A
Development and lease-up
communities(3).............. 4,802 490 N/A 8,179 540 N/A
Sold communities(4)............ -- 1,034 N/A -- 2,083 N/A
Other revenue(5)............... 658 663 (0.8)% 1,347 1,207 11.6%
------- ------- ------- -------
40,426 33,585 20.4% 77,857 65,323 19.2%
------- ------- ------- -------
Property operating and
maintenance expense (exclusive
of depreciation and
amortization):
Fully stabilized communities... 10,782 10,491 2.8% 20,568 19,784 4.0%
Communities stabilized during
1995........................ 674 505 33.5% 1,289 902 42.9%
Acquired communities........... 342 -- N/A 342 -- N/A
Development and lease-up
communities................. 1,699 521 N/A 3,203 844 N/A
Sold communities............... -- 479 N/A -- 894 N/A
Other expenses(6).............. 876 796 10.1% 1,767 1,788 (1.2)%
------- ------- ------- -------
14,373 12,792 12.4% 27,169 24,212 12.2%
------- ------- ------- -------
Revenue in excess of specified
expense........................ $26,053 $20,793 25.3% $50,688 $41,111 23.3%
======= ======= ======= =======
Recurring capital
expenditures:(7)
Carpet......................... $ 236 $ 241 (2.1)% $ 410 $ 433 (5.3)%
Other.......................... 690 163 323.3% 982 333 194.9%
------- ------- ------- -------
Total.................. $ 926 $ 404 129.2% $ 1,392 $ 766 81.7%
======= ======= ======= =======
Average apartment units in
service........................ 17,155 15,665 9.5% 16,856 15,468 9.0%
======= ======= ======= =======
Recurring capital expenditures
per apartment unit............. $ 54 $ 26 107.7% $ 83 $ 50 66.0%
======= ======= ======= =======
</TABLE>
- ---------------
(1) Communities which reached stabilization prior to January 1, 1995.
(2) On May 7, 1996, the Operating Partnership reacquired three contiguous
Atlanta apartment communities containing a total of 810 units which the
Operating Partnership now operates as a single community.
(3) Communities in the "construction", "development" or "lease-up" stage during
1996 and, therefore, not considered fully stabilized for all of the periods
presented.
(4) Three communities, containing 568 units, which were sold on September 13,
1995.
S-18
<PAGE> 19
(5) Other revenue includes revenue on furnished apartment rentals above the
unfurnished rental rates and any revenue not directly related to property
operations.
(6) Other expenses includes certain indirect central office operating expenses
related to management, grounds maintenance, and costs associated with
furnished apartment rentals.
(7) In addition to those expenses which relate to property operations, the
Operating Partnership incurs recurring and nonrecurring expenditures
relating to acquiring new assets, materially enhancing the value of an
existing asset, or substantially extending the useful life of an existing
asset, all of which are capitalized.
For the three and six months ended June 30, 1996, rental and other revenue
increased $6,841, or 20.4% and $12,534, or 19.2%, respectively, compared to the
same period in the prior year, primarily as a result of increased rates for
fully stabilized communities, an increase in units placed in service and the
acquisition of a community, partially offset by a decrease in rental and other
revenue due to the sale of three communities during the third quarter of 1995.
For the three and six months ended June 30, 1996, rental and other revenue from
communities stabilized prior to January 1, 1995, increased $1,620, or 5.4%, and
$3,355, or 5.7%, respectively, compared to the same periods in the prior year,
primarily as a result of higher rental rates. For the three and six months ended
June 30, 1996, rental and other revenue from communities stabilized during 1995,
development and lease-up communities and acquired communities increased, in the
aggregate, $6,260 and $11,122, respectively, compared to the same periods in the
prior year, primarily due to additional units placed in service through the
development and acquisition of communities. The historical operating results
include, for the six months ended June 30, 1995, revenues and expenses related
to three communities sold on September 13, 1995, all of which had previously
been included in the fully stabilized communities group.
For the six months ended June 30, 1996, property operating and maintenance
expenses (exclusive of depreciation and amortization) increased, compared to the
same period in the prior year, primarily due to the increase in the units placed
in service through the development and acquisition of communities.
S-19
<PAGE> 20
FULLY STABILIZED COMMUNITIES
The Operating Partnership defines fully stabilized communities as those
which have reached stabilization prior to the beginning of the previous calendar
year.
The operating performance of the 37 communities and the first phase of two
additional communities containing an aggregate of 14,160 units which were fully
stabilized as of January 1, 1995, is summarized as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
---------------------------- ----------------------------
1996 1995 % CHANGE 1996 1995 % CHANGE
------- ------- -------- ------- ------- --------
<S> <C> <C> <C> <C> <C> <C>
Rental and other revenue........ $31,500 $29,880 5.4% $62,569 $59,214 5.7%
Property operating and
maintenance expense (exclusive
of depreciation and
amortization)................. 10,782 10,491 2.8% 20,568 19,784 4.0%
------- ------- ------- -------
Revenue in excess of specified
expense....................... $20,718 $19,389 6.9% $42,001 $39,430 6.5%
======= ======= ======= =======
Recurring capital
expenditures:(1)
Carpet........................ $ 231 $ 229 0.9% $ 405 $ 400 1.3%
Other......................... 651 153 325.5% 938 263 256.7%
------- ------- ------- -------
Total................. $ 882 $ 382 130.9% $ 1,343 $ 663 102.6%
======= ======= ======= =======
Recurring capital expenditures
per apartment unit(2)......... $ 62 $ 27 $ 95 $ 47
======= ======= ======= =======
Average economic occupancy(3)... 95.7% 96.1% 95.5% 96.0%
======= ======= ======= =======
Average monthly rental rate per
apartment unit(4)............. $ 752 $ 717 4.9% $ 749 $ 712 5.2%
======= ======= ======= =======
Apartment units in service...... 14,160 14,160 14,160 14,160
======= ======= ======= =======
</TABLE>
- ---------------
(1) In addition to those expenses which relate to property operations, the
Operating Partnership incurs recurring and nonrecurring expenditures
relating to acquiring new assets, materially enhancing the value of an
existing asset, or substantially extending the useful life of an existing
asset, all of which are capitalized.
(2) In addition to such capitalized expenditures, the Operating Partnership
expensed $160 and $280 per unit on building maintenance (inclusive of
direct salaries) and $72 and $115 per unit on landscaping (inclusive of
direct salaries) for the three and six months ended June 30, 1996,
respectively.
(3) Average economic occupancy is defined as gross potential rent less vacancy
losses, model expenses and bad debt divided by gross potential rent for the
period, expressed as a percentage. The calculation of average economic
occupancy does not include a deduction for concessions and employee
discounts. (Average economic occupancy, including these amounts, would have
been 95.2% and 95.6% and 95.0% and 95.5% for the three and six months ended
June 30, 1996 and 1995, respectively.) For the three month period ended
June 30, 1996 and 1995, concessions were $81 and $79 and employee discounts
were $65 and $63, respectively. Concessions were $143 and $141 and employee
discounts were $136 and $122, for the six months ended June 30, 1996 and
1995, respectively.
(4) Average monthly rental rate is defined as the average of the gross actual
rental rates for occupied units and the anticipated rental rates for
unoccupied units.
For the three and six months ended June 30, 1996, rental and other revenue
increased, compared to the same periods in the prior year, due to higher rental
rates. For the three and six months ended June 30, 1996, property operating and
maintenance expenses (exclusive of depreciation and amortization) increased
$291, or 2.8%, and $784, or 4.0%, respectively, compared to the same period in
the prior year, primarily as a result of an increase in ad valorem real estate
taxes.
S-20
<PAGE> 21
The increase in recurring capital expenditures per apartment unit for the
three and six months ended June 30, 1996, compared to the same period in the
prior year, is primarily due to the refurbishment of leasing offices and other
common areas within the communities.
LEASE-UP DEFICITS
As noted in the overview of Community Operations, the Operating Partnership
has adopted an accounting policy related to communities in the development and
lease-up stage whereby substantially all operating expenses (including
pre-opening marketing expenses) are expensed as incurred. The Operating
Partnership treats each unit in an apartment community separately for cost
accumulation, capitalization and expense recognition purposes. Prior to the
commencement of leasing activities, interest as well as other construction costs
are capitalized and reflected on the balance sheet as construction in progress.
Once a unit is placed in service, all expenses allocated to that unit, including
interest, are expensed as incurred. During the lease-up phase, the sum of
interest expense on completed units and other operating expenses (including pre-
opening marketing expenses) will typically exceed rental revenues, resulting in
a "lease-up deficit," which continues until rental revenues exceed such
expenses.
In this presentation, only those communities which were dilutive for the
respective period are included and, accordingly, different communities may be
included in different quarters.
For the quarters ended March 31 and June 30, 1996, the "lease-up deficit"
charged to and included in results of operations is summarized as follows:
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30,
1996
---------------
QTR 1 QTR 2
----- -----
<S> <C> <C>
Rental and other revenue............................................. $ 574 $ 294
Property operating and maintenance expense (exclusive of depreciation
and amortization).................................................. 469 189
----- ----
Revenue in excess of specified expense............................... 105 105
Interest expense..................................................... 338 196
----- ----
Lease-up deficit..................................................... $(233) $ (91)
===== ====
</TABLE>
THIRD PARTY MANAGEMENT SERVICES
The Operating Partnership provides asset management, leasing and other
consulting services to non-related owners of apartment communities through two
of its subsidiaries, RAM Partners, Inc. ("RAM") and Post Asset Management, Inc.
("Post Asset Management").
The operating performance of RAM and Post Asset Management for the three
and six months ended June 30, 1996 and 1995 is summarized as follows:
RAM PARTNERS, INC.
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
------------------------- -------------------------
1996 1995 %CHANGE 1996 1995 %CHANGE
------ ------ ------- ------ ------ -------
<S> <C> <C> <C> <C> <C> <C>
Property management and other
revenue............................ $ 649 $ 531 22.2% $1,309 $1,059 23.6%
Property management expense.......... 297 264 12.5% 653 582 12.2%
General and administrative expense... 113 104 8.7% 231 223 3.6%
------ ------ ------ ------
Revenue in excess of specified
expense............................ $ 239 $ 163 46.6% $ 425 $ 254 67.3%
====== ====== ====== ======
Average apartment units managed...... 9,814 9,440 4.0% 9,829 9,440 4.1%
====== ====== ====== ======
</TABLE>
S-21
<PAGE> 22
The increase in property management revenues and expenses from each of the
1995 to 1996 periods is primarily attributable to the increase in the average
number and the average gross revenues of units managed.
POST ASSET MANAGEMENT
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
-------------------------- --------------------------
1996 1995 % CHANGE 1996 1995 % CHANGE
------ ------ -------- ------ ------ --------
<S> <C> <C> <C> <C> <C> <C>
Property management and other
revenue........................... $ 88 $ 130 (32.3)% $ 169 $ 256 (34.0)%
Property management expense......... 60 85 (29.4)% 142 194 (26.8)%
General and administrative
expense........................... 11 14 (21.4)% 25 34 (26.5)%
------ ------ ------ ------
Revenue in excess of specified
expense........................... $ 17 $ 31 (45.2)% $ 2 $ 28 (92.9)%
====== ====== ====== ======
Average apartment units managed..... 866 1,256 (31.1)% 866 1,256 (31.1)%
====== ====== ====== ======
</TABLE>
Property management revenues and the related expenses decreased for each of
the periods in 1996, compared to the same periods in 1995, primarily due to the
reduction in the average number of apartment units managed. This reduction was
primarily due to two management contracts which were cancelled effective January
1996. The Operating Partnership expects income from Post Asset Management to
continue to decline as contracts are cancelled and not replaced.
THIRD PARTY LANDSCAPE SERVICES
The Operating Partnership provides landscape maintenance, design and
installation services to non-related parties through a subsidiary, Post
Landscape Services, Inc. ("Post Landscape Services").
The operating performance of Post Landscape Services for the three and six
months ended June 30, 1996 and 1995 is summarized as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
-------------------------- --------------------------
1996 1995 % CHANGE 1996 1995 % CHANGE
------ ------ -------- ------ ------ --------
<S> <C> <C> <C> <C> <C> <C>
Landscape services and other
revenue......................... $1,356 $1,342 1.0% $2,268 $2,156 5.2%
Landscape services expense........ 991 884 12.1% 1,658 1,476 12.3%
General and administrative
expense......................... 104 182 (42.9)% 205 278 (26.3)%
------ ------ ------ ------
Revenue in excess of specified
expense......................... $ 261 $ 276 (5.4)% $ 405 $ 402 0.7%
====== ====== ====== ======
</TABLE>
The increase in landscape services revenue and landscape service expense
for each of the periods ended June 30, 1996, compared to the same period in
1995, is primarily due to increases in landscape contracts.
OTHER INCOME AND EXPENSES
General and administrative expense increased for the three and six months
ended June 30, 1996, compared to the same period in the prior year, primarily as
a result of increased travel expenses and personnel costs.
The extraordinary item of $648 and $803 for the three and six months ended
June 30, 1995, respectively, resulted from the costs associated with the early
retirement of debt.
RESULTS OF OPERATIONS FOR THE YEARS ENDED DECEMBER 31, 1995, 1994 AND 1993
The Operating Partnership recorded net income of $37,297 for the year ended
December 31, 1995 primarily as a result of increased rental rates for fully
stabilized communities and an increase in units placed in service. This is
compared to net income of $24,730 for the year ended December 31, 1994 and a net
loss of ($9,061) for the year ended December 31, 1993. The increase in net
income in 1994 was primarily due to
S-22
<PAGE> 23
lower interest expense as a result of the repayment or economic defeasance of
debt with contributions from the Company resulting from proceeds of the Initial
Offering and the public offering completed by the Company on February 7, 1994
(the "Second Offering").
COMMUNITY OPERATIONS
At December 31, 1995, the Operating Partnership's portfolio of apartment
communities consisted of thirty-four communities and the first phase of two
additional communities which were completed and stabilized for all of the
current and prior year, three communities which achieved full stabilization
during the prior year, three communities and the second phase of an existing
community which reached stabilization during the current year and eight
communities and a second phase of an existing community in the development or
lease-up stage. In addition, during the third quarter of 1995, the Operating
Partnership sold three of its communities which it had previously developed and
operated.
ALL OPERATING COMMUNITIES
The operating performance for all of the Operating Partnership's apartment
communities combined for the years ended December 31, 1995, 1994 and 1993 is
summarized as follows:
<TABLE>
<CAPTION>
YEAR ENDED YEAR ENDED
DECEMBER 31, DECEMBER 31,
------------------------------ ------------------------------
1995 1994 % CHANGE 1994 1993 % CHANGE
-------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Rental and other revenue:
Fully stabilized
communities(1)............... $112,048 $106,421 5.3% $106,421 $ 99,853 6.6%
Communities stabilized less than
two years(2)................. 8,417 5,364 56.9% 5,364 1,015 428.5%
Development and lease-up
communities(3)............... 10,852 133 N/A 133 -- N/A
Sold communities(4)............. 2,926 3,998 (26.8)% 3,998 3,854 3.7%
Other revenue(5)................ 2,458 2,074 18.5% 2,074 2,170 (4.4)%
-------- -------- -------- --------
136,701 117,990 15.9% 117,990 106,892 10.4%
-------- -------- -------- --------
Property operating and maintenance
expense (exclusive of
depreciation and amortization):
Fully stabilized communities.... 38,460 36,699 4.8% 36,699 35,724 2.7%
Communities stabilized less than
two years.................... 2,306 1,780 29.6% 1,780 544 227.2%
Development and lease-up
communities.................. 4,450 515 N/A 515 -- N/A
Sold communities................ 1,279 1,722 (25.7)% 1,722 1,788 (3.7)%
Other expenses(6)............... 3,417 2,660 28.5% 2,660 3,153 (15.6)%
-------- -------- -------- --------
49,912 43,376 15.1% 43,376 41,209 5.3%
-------- -------- -------- --------
Revenue in excess of specified
expense......................... 86,789 74,614 16.3% 74,614 65,683 13.6%
======== ======== ======== ========
Recurring capital expenditures(7):
Carpet.......................... $ 897 $ 729 23.0% $ 729 $ 742 (1.8)%
Other........................... 803 1,087 (26.1)% 1,087 979 11.0%
-------- -------- -------- --------
Total................... $ 1,700 $ 1,816 (6.4)% $ 1,816 $ 1,721 5.5%
======== ======== ======== ========
Average apartment units in
service......................... 15,519 14,619 6.2% 14,619 14,179 3.1%
======== ======== ======== ========
</TABLE>
- ---------------
(1) Communities which reached stabilization prior to January 1, 1994.
(2) Communities which reached stabilization during the year ended December 31,
1994.
S-23
<PAGE> 24
(3) Communities in the "construction", "development" or "lease-up" stage during
1995 and, therefore, not considered fully stabilized for all of the periods
presented.
(4) Communities which were sold on September 13, 1995.
(5) Other revenue includes revenue on furnished apartment rentals above the
unfurnished rental rates and any revenue not directly related to property
operations.
(6) Other expenses includes certain indirect central office operating expenses
related to management, grounds maintenance, and costs associated with
furnished apartment rentals.
(7) In addition to those expenses which relate to property operations, the
Operating Partnership incurs recurring and non-recurring expenditures
relating to acquiring new assets, materially enhancing the value of an
existing asset, or substantially extending the useful life of an existing
asset, all of which are capitalized.
Rental and other revenue increased for 1995 and 1994 primarily as a result
of increased rates for fully stabilized communities and an increase in units
placed in service. Rental and other revenue from communities stabilized since
January 1, 1994, increased $5,627 from 1994 to 1995 primarily as a result of
higher rental rates. Rental and other revenue from all other communities
increased by $12,700 from 1994 to 1995 primarily due to additional units placed
in service. On September 13, 1995, the Operating Partnership sold three
communities, all of which had been previously included in the fully stabilized
community group and are now shown separately.
Property operating and maintenance expenses (exclusive of depreciation and
amortization) increased from 1993 to 1994 and 1994 to 1995 primarily due to the
increase in the units placed in service.
FULLY STABILIZED COMMUNITIES
The Operating Partnership defines fully stabilized communities as those
which have reached stabilization prior to the beginning of the previous calendar
year.
The operating performance of the 34 communities and the first phase of two
additional communities containing an aggregate of 13,428 units which were fully
stabilized as of January 1, 1994, are summarized as follows:
<TABLE>
<CAPTION>
YEAR ENDED YEAR ENDED
DECEMBER 31, DECEMBER 31,
------------------------------ ------------------------------
1995 1994 % CHANGE 1994 1993 % CHANGE
-------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Rental and other revenue.... $112,048 $106,421 5.3% $106,421 $ 99,853 6.6%
Property operating and
maintenance expense
(exclusive of depreciation
and amortization)(1)...... 38,460 36,699 4.8% 36,699 35,724 2.7%
------- ------- ------- -------
Revenue in excess of
specified expense......... $ 73,588 $ 69,722 5.5% $ 69,722 $ 64,129 8.7%
======= ======= ======= =======
Average economic
occupancy(2).............. 96.0% 96.5% 96.5% 94.6%
======= ======= ======= =======
Average monthly rental rate
per apartment unit(3)..... $ 710 $ 668 6.3% $ 668 $ 628 6.4%
======= ======= ======= =======
Apartment units in
service................... 13,428 13,428 -- 13,428 13,428 --
======= ======= ======= =======
</TABLE>
- ---------------
(1) In addition to those expenses which relate to property operations, the
Operating Partnership incurs recurring and non-recurring expenditures
relating to acquiring new assets, materially enhancing the value of an
existing asset, or substantially extending the useful life of an existing
asset, all of which are capitalized. For the year ended December 31, 1995
and 1994, recurring expenditures were $1,601 and $1,470, or $119 and $109
on a per unit basis, respectively.
S-24
<PAGE> 25
(2) Average economic occupancy is defined as gross potential rent less vacancy
losses, model expenses and bad debt divided by gross potential rent for the
period, expressed as a percentage. The calculation of average economic
occupancy does not include a deduction for concessions and employee
discounts. (Average economic occupancy, including these amounts would have
been 95.5%, 96.1% and 93.8% for the year ended December 31, 1995, 1994 and
1993, respectively.) For the year ended December 31, 1995, concessions were
$296 and employee discounts were $213.
(3) Average monthly rental rate is defined as the average of the gross actual
rental rates for leased units and the average of the anticipated rental
rates for unoccupied units.
Rental and other revenue increased from 1994 to 1995 due to higher rental
rates with occupancy slightly declining. Property operating and maintenance
expenses (exclusive of depreciation and amortization) increased $1,761, or 4.8%.
Ad valorem real estate taxes increased from $9,376 in 1994 to $10,340 in 1995,
an increase of 10.3%. This increase alone accounted for 55% of the overall
operating expense increase. The remaining increase was primarily due to modest
increases in utilities, advertising and promotion and building repairs and
maintenance offset by a modest decrease in landscaping and grounds and
maintenance expense.
Rental and other revenue increased from 1993 to 1994 as a result of
increased rental rates and occupancy. The modest increase in property and
maintenance expense from 1993 to 1994 was primarily due to increases in real
estate taxes, insurance and personnel costs which were partially offset by
reductions in advertising and promotion expense due to lower vacancies. In
addition, utilities expense remained relatively flat despite rising rates due to
the effect of installation of cost saving devices and implemented cost controls.
Building repairs and maintenance increased from 1993 to 1994 due to various cost
reduction programs implemented at the communities and cost savings achieved as
grounds matured during the period.
LEASE-UP DEFICITS
As noted in the overview of Community Operations, the Operating Partnership
has adopted an accounting policy related to communities in the development and
lease-up stage whereby substantially all operating expenses (including
pre-opening marketing expenses) are expensed as incurred. The Operating
Partnership treats each unit in an apartment community separately for cost
accumulation, capitalization and expense recognition purposes. Prior to the
commencement of leasing activities, interest as well as other construction costs
are capitalized and reflected on the balance sheet as construction in progress.
Once a unit is placed in service, all expenses allocated to that unit, including
interest, are expensed as incurred. During the lease-up phase, the sum of
interest expense on completed units and other operating expenses (including pre-
opening marketing expenses) will typically exceed rental revenues, resulting in
a "lease-up deficit," which continues until rental revenues exceed such
expenses.
In this presentation, only those communities which were dilutive during
each period are included in that period and, accordingly, different communities
may be included in different periods.
For each quarter of the year ended December 31, 1995, the "lease-up
deficit" charged to and included in results of operations are summarized as
follows:
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31, 1995
------------------------------
QTR 1 QTR 2 QTR 3 QTR 4
----- ----- ------ -----
<S> <C> <C> <C> <C>
Rental and other revenue............................... $ 282 $ 591 $1,591 $ 863
Property operating and maintenance expense (exclusive
of depreciation and amortization).................... 450 631 840 501
------ ------ ------ ------
Revenue in excess of specified expense................. (168) (40) 751 362
Interest expense....................................... 175 347 1,002 548
------ ------ ------ ------
Lease-up deficit....................................... $(343) $(387) $ (251) $(186)
====== ====== ====== ======
</TABLE>
S-25
<PAGE> 26
THIRD PARTY MANAGEMENT SERVICES
The Operating Partnership provides asset management, leasing and other
consulting services to non-related owners of apartment communities through two
of its subsidiaries, RAM and Post Asset Management.
The operating performance of RAM and Post Asset Management for the years
ended December 31, 1995, 1994 and 1993 are summarized as follows:
RAM PARTNERS, INC.
<TABLE>
<CAPTION>
YEAR ENDED YEAR ENDED
DECEMBER 31, DECEMBER 31,
------------------------ ------------------------
% %
1995 1994 CHANGE 1994 1993 CHANGE
------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
Property management and other
revenue............................ $2,331 $2,184 6.7% $2,184 $2,318 (5.8 )%
Property management expense.......... 1,213 1,278 (5.1)% 1,278 1,388 (7.9 )%
General and administrative expense... 467 433 7.9% 433 492 (12.0 )%
------ ------ ------ ------
Revenue in excess of specified
expense............................ $ 651 $ 473 37.6% $ 473 $ 438 8.0 %
====== ====== ====== ======
Average apartment units in service... 8,798 8,488 3.7% 8,488 9,488 (10.5 )%
====== ====== ====== ======
</TABLE>
The change in property management revenues and expenses from 1994 to 1995
and 1993 to 1994 is primarily attributable to the change in the average number
and the average gross revenues of units managed.
POST ASSET MANAGEMENT
<TABLE>
<CAPTION>
YEAR ENDED YEAR ENDED
DECEMBER 31, DECEMBER 31,
------------------------ ------------------------
% %
1995 1994 CHANGE 1994 1993 CHANGE
------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
Property management and other
revenue............................ $ 550 $ 578 (4.8 )% $ 578 $1,001 (42.3 )%
Property management expense.......... 392 408 (3.9 )% 408 431 (5.3 )%
General and administrative expense... 94 110 (14.5 )% 110 142 (22.5 )%
------ ------ ------ ------
Revenue in excess of specified
expense............................ $ 64 $ 60 6.7 % $ 60 $ 428 (86.0 )%
====== ====== ====== ======
Average apartment units in service... 1,061 1,498 (29.2 )% 1,498 2,145 (30.2 )%
====== ====== ====== ======
</TABLE>
The decreases in property management revenues and the related expenses for
1995 to 1994 were primarily due to the reduction in the average number of
apartment units managed during the periods. These reductions were primarily due
to cancellation of three management contracts during 1993 and one during 1994
for communities developed by the Operating Partnership and sold to third-party
owners prior to the Initial Offering. Two additional contracts were canceled
effective in January 1996. The Operating Partnership expects income from Post
Asset Management to continue to decline as contracts are canceled and not
replaced.
THIRD PARTY LANDSCAPE SERVICES
The Operating Partnership provides landscape maintenance, design and
installation services to non-related parties through a subsidiary, Post
Landscape.
S-26
<PAGE> 27
The operating performance of Post Landscape for the years ended December
31, 1995, 1994 and 1993 are summarized as follows:
<TABLE>
<CAPTION>
YEAR ENDED YEAR ENDED
DECEMBER 31, DECEMBER 31,
------------------------ ------------------------
% %
1995 1994 CHANGE 1994 1993 CHANGE
------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
Landscape services and other revenue... $4,662 $3,808 22.4% $3,808 $3,829 (0.5)%
Landscape services expense............. 3,255 2,685 21.2% 2,685 2,703 (0.7)%
General and administrative expense..... 695 413 68.3% 413 448 (7.8)%
------ ------ ------ ------
Revenue in excess of specified
expense.............................. $ 712 $ 710 0.3% $ 710 $ 678 4.7%
====== ====== ====== ======
</TABLE>
The change in landscape services revenue, landscape services expense and
general and administrative expense from 1994 to 1995 is primarily due to an
increase in landscape contracts. Revenues and expenses for 1993 and 1994
remained consistent.
OTHER INCOME AND EXPENSES
Depreciation and amortization expense increased from 1994 to 1995 primarily
due to the completion of new communities in 1995. The decrease from 1993 to 1994
is primarily due to the write-off of deferred loan cost related to early
extinguishment of indebtedness with contributions made by the Company from
proceeds of the Initial Offering and Second Offering.
Interest expense increased from 1994 to 1995 due to additional outstanding
borrowings until the time of the public offering completed by the Company on
October 20, 1995 (the "Third Offering"). The decrease from 1993 to 1994 is
primarily due to the repayment or economic defeasance of debt with contributions
made by the Company from proceeds of the Initial Offering and Second Offering.
Amortization of interest rate protection agreement and swap gain increased
from 1993 to 1994 due to lower amortization of swap gain from the extinguishment
of debt with contributions made by the Company from proceeds of the Initial
Offering and Second Offering.
General and administrative expense remained relatively consistent from 1994
to 1995. The increase from 1993 to 1994 is due to increased costs associated
with operating the Company as a public company, write-off of costs ($282)
relating to abandoned development projects and additional incentive based
executive compensation.
Formation Transaction expense was incurred during the year ended December
31, 1993 relating to legal, accounting and other costs arising in connection
with the business combination completed at the time of the Initial Offering.
Gain on sale of real estate assets during 1995 and 1994 resulted from the
sale of three communities and a parcel of land, respectively.
The extraordinary item of $1,120, $4,413 and $13,628 for the years ended
December 31, 1995, 1994 and 1993, resulted from the costs associated with the
early retirement of debt.
LIQUIDITY AND CAPITAL RESOURCES
LIQUIDITY
The Operating Partnership's net cash provided by operating activities
increased from $2,412 in 1993 to $43,819 in 1994, principally due to decreased
interest expense ($18,603) resulting from retirements of debt with contributions
from the Company of proceeds from the Initial and Second Offerings, increased
property revenue in excess of specified expenses ($8,931) and 1993 non-recurring
payments for debt prepayment penalties ($13,803) and REIT formation expenses
($2,783), and increased from $43,819 in 1994 to $57,366 in 1995, principally due
to increased property revenue in excess of specified expenses, and increased
from $33,856 in the six months ended June 30, 1995 to $43,408 in the six months
ended June 30, 1996, principally
S-27
<PAGE> 28
due to increased property revenue in excess of specified expenses. Net cash used
in investing activities increased from $51,152 in 1993 to $99,364 in 1994,
principally due to the increase in spending on new community development, and
increased from $99,364 in 1994 to $114,531 in 1995, principally due to a $27,740
increase in spending on new community development and acquisition activity
offset by an increase in net proceeds from the sale of real estate assets of
$15,152. Net cash used in investing activities increased from $67,606 in the six
months ended June 30, 1995 to $98,170 in the six months ended June 30, 1996
principally due to the increase in construction activities relating to new
development and acquisition of new communities. The Operating Partnership's net
cash provided by financing activities decreased from $49,647 in 1993 to $46,496
in 1994, principally due to the effects of contributions from the Company of
proceeds from the Initial and Second Offerings and the payment of dividends in
1994, and increased from $46,496 in 1994 to $60,881 in 1995, primarily due to
the effects of contributions from the Company of proceeds from the Third
Offering and dividend reinvestment plan and the Operating Partnership's
additional borrowings and distributions, and decreased from $49,262 in the six
months ended June 30, 1995 to $47,378 in the six months ended June 30, 1996 due
to an increase in net borrowing activity to fund development offset by a
decrease in contributions from the Company of cash proceeds from the dividend
reinvestment plan and an increase in distributions paid for the six months ended
June 30, 1996.
The Company has elected to be taxed as a Real Estate Investment Trust
("REIT") under Sections 856 through 860 of the Internal Revenue Code of 1986, as
amended, commencing with its taxable year ended December 31, 1993. REITs are
subject to a number of organizational and operational requirements, including a
requirement that they currently distribute 95% of their ordinary taxable income.
The Operating Partnership makes distributions to enable the Company to satisfy
this requirement. As a REIT, the Company generally will not be subject to
Federal income tax on net income.
At June 30, 1996, the Operating Partnership had total indebtedness of
$421,378 and cash and cash equivalents of $1,624. The Operating Partnership's
indebtedness includes approximately $33,340 in conventional mortgages payable
secured by individual communities, tax-exempt bond indebtedness of $149,038,
senior unsecured notes of $100,000 and borrowings under an unsecured line of
credit of approximately $139,000.
The Operating Partnership expects to meet its short-term liquidity
requirements generally through its net cash provided by operations and
borrowings under credit arrangements and expects to meet certain of its long-
term liquidity requirements, such as scheduled debt maturities, repayment of
financing of construction and development activities and possible property
acquisitions, through long-term secured and unsecured borrowings, possible sales
of properties and the issuance of debt securities or additional equity
securities of the Company, or, possibly in connection with acquisitions of land
or improved properties, Units of the Operating Partnership. The Operating
Partnership believes that its net cash provided by operations will be adequate
and anticipates that it will continue to be adequate to meet both operating
requirements and payment of distributions by the Operating Partnership in
accordance with REIT requirements, of which the Company is subject to, in both
the short and the long term. The budgeted expenditures for improvements and
renovations to certain of the communities are expected to be funded from
property operations.
At June 30, 1996, on a pro forma basis giving effect to the Offering, the
Cash Management Line and the reissuance of the Post Canyon and Post Corners
bonds, the ratio of Debt to Adjusted Total Assets would have been 40%, the ratio
of Secured Debt to Adjusted Total Assets would have been 17%, the ratio of Total
Unencumbered Assets to Unsecured Debt would have been 298% and Consolidated
Income Available for Debt Service would have been 4.1x the Annual Debt Service
Charge (calculated based upon the last four fiscal quarters in accordance with
the Indenture).
LINES OF CREDIT
On February 1, 1995, the Operating Partnership closed a 39-month unsecured
revolving line of credit (the "Revolver") in the amount of $180,000 with a bank
syndicate to provide funding for future construction, acquisitions and general
business obligations. Borrowings under the Revolver initially bore interest at
LIBOR plus 1.50% or prime minus .25% and had a maturity date of May 1, 1998. On
March 1, 1996 the Revolver was
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<PAGE> 29
amended to reduce the interest rate to LIBOR plus 0.95% or prime minus .25% and
to extend the maturity to May 1, 1999. The amendment also provides for the rate
to be adjusted up or down based on changes in the credit ratings on the
Operating Partnership's senior unsecured debt. On June 4, 1996, the rating on
the Operating Partnership's senior unsecured debt by Standard & Poor's was
raised to BBB+ which further reduced the interest rate on the Revolver to its
current rate of LIBOR plus .80% or prime minus .25%. The credit agreement for
the Revolver contains customary representations, covenants and events of
default, including covenants which restrict the ability of the Operating
Partnership to make distributions in excess of stated amounts. In general,
during any fiscal year the Operating Partnership may only distribute up to 100%
of the Operating Partnership's consolidated income available for distribution
(as defined in the credit agreement) exclusive of distributions of up to $30,000
of capital gains for such year. The credit agreement contains exceptions to
these limitations to allow the Operating Partnership to make distributions
necessary to allow the Company to maintain its status as a REIT. The Operating
Partnership does not anticipate that this covenant will adversely affect its
ability to make distributions.
On July 26, 1996, the Operating Partnership closed a $20,000 unsecured line
of credit with Wachovia Bank of Georgia, N.A. (the "Cash Management Line"),
which was fully funded and used to pay down the outstanding balance on the
Revolver. The Cash Management Line bears interest at LIBOR plus .75% and has a
maturity date of July 25, 1997. The Operating Partnership has an automatic daily
sweep which applies all available cash to reduce the outstanding balance on the
Cash Management Line.
At June 30, 1996, the Operating Partnership had $41,000 available under the
Revolver to fund future development and general corporate obligations. Pro forma
for the Offering and the Cash Management Line, the Operating Partnership would
have had $160,100 available under the Revolver at June 30, 1996. In addition,
the Operating Partnership has a $3,000 facility to provide letters of credit for
general business purposes.
NORTHWESTERN MUTUAL UNSECURED LOANS
On June 7, 1995, the Operating Partnership issued $50,000 of unsecured
senior notes with The Northwestern Mutual Life Insurance Company (the "NML
Notes"). The NML Notes were in two tranches: the first, aggregating $30,000,
carries an interest rate of 8.21% per annum and matures on June 7, 2000; and the
second, aggregating $20,000, carries an interest rate of 8.37% per annum and
matures on June 7, 2002. Proceeds from the issuance of the NML Notes were used
to reduce secured indebtedness and to pay down the Revolver. The note agreements
pursuant to which the NML Notes were purchased contain representations,
covenants and events of default similar to those contained in the note agreement
for the Revolver.
WACHOVIA UNSECURED LOANS
On September 29, 1995, the Operating Partnership issued $50,000 of
unsecured senior notes with Wachovia Bank of Georgia, N.A. (the "Wachovia
Notes"). The Wachovia Notes were in two tranches: the first tranche, aggregating
$25,000, will mature on September 29, 1999; the second tranche, aggregating
$25,000, will mature on September 29, 2001. Both tranches bear interest at 7.15%
per annum. Proceeds from the issuance of the Wachovia Notes were used to reduce
indebtedness outstanding on the Revolver. The credit agreement for the notes
contain representations, covenants and events of default similar to those
contained in the note agreement for the Revolver.
TAX EXEMPT BONDS
On June 29, 1995, the Operating Partnership replaced the bank letters of
credit providing credit enhancement for twelve of its outstanding tax-exempt
bonds and three of its economically defeased tax-exempt bonds. Under an
agreement with the Federal National Mortgage Association ("FNMA"), FNMA now
provides, directly or indirectly through other bank letters of credit, credit
enhancement with respect to such bonds. Under the terms of such agreement, FNMA
has provided replacement credit enhancement through 2025 for five bond issues,
aggregating $52,675, which were reissued, and has agreed, subject to certain
conditions, to provide credit enhancement through June 1, 2025 for up to an
additional $101,853 with respect
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<PAGE> 30
to ten other bond issues which mature and may be refunded in 1996 through 1998.
The agreement with FNMA contains representations, covenants, and events of
default customary to such secured loans.
OTHER ACTIVITIES
On May 7, 1996, the Operating Partnership reacquired three contiguous
Atlanta apartment communities containing a total of 810 units which the
Operating Partnership developed in the early 1980's and managed under the
Post(R) brand name through mid-1993. The Operating Partnership's capital
investment, including expenditures to add perimeter fencing and steel entry
gates and construction of a new centralized leasing office, will be
approximately $48 million. At the time of acquisition the community was operated
as Dunwoody Crossing and is now operated by the Operating Partnership as Post
Creek(TM).
In April 1996, the Operating Partnership listed two communities in Florida,
containing a total of 596 units, for sale. On July 19, 1996, one of the
communities, containing 180 units, was sold.
DIVIDEND REINVESTMENT PLAN
The Dividend Reinvestment Plan ("DRIP") is available to all shareholders of
the Company. Under the DRIP, shareholders may elect for their dividends to be
used to acquire additional shares of the Company's Common Stock directly from
the Company, for 95% of the market price on the date of purchase.
SCHEDULE OF INDEBTEDNESS
The following table reflects the Operating Partnership's indebtedness at
June 30, 1996 and on a pro forma basis after giving effect to the Offering, the
funding of the Cash Management Line on July 26, 1996, and the reissuance of the
Post Canyon and Post Corners bonds which matured and were refunded on July 1,
1996 and August 1, 1996, respectively:
<TABLE>
<CAPTION>
MATURITY PRINCIPAL PRO
COMMUNITY LOCATION INTEREST RATE DATE(1) BALANCE FORMA
- ---------------------------------- ------------ --------------------------------- ---------- --------- --------
<S> <C> <C> <C> <C> <C>
TAX EXEMPT FIXED RATE (SECURED)
Post Canyon....................... Atlanta, GA 7.4% + .575%(2)(3) 07/01/96(4)(5) $ 16,845 $ 0
Post Corners...................... Atlanta, GA 7.4% + .575%(2)(3) 08/01/96(4)(6) 14,760 0
Post Bridge....................... Atlanta, GA 7.5% + .575%(2)(3) 01/01/97(4) 9,960 9,960
Post Village (Atlanta) Gardens.... Atlanta, GA 7.5% + .575%(2)(3) 01/01/97(4) 14,500 14,500
Post Chase........................ Atlanta, GA 7.5% + .575%(2)(3) 07/01/97(4) 12,000 12,000
Post Walk......................... Atlanta, GA 7.5% + .575%(2)(3) 07/01/97(4) 15,000 15,000
Post Court........................ Atlanta, GA 7.5% + .575%(2)(3) 06/01/98(4) 13,298 13,298
-------- --------
96,363 64,758
-------- --------
CONVENTIONAL FIXED RATE (SECURED)
Post Village (Atlanta) Arbors..... Atlanta, GA 8.16% 02/10/97 7,684 7,684
Post Summit....................... Atlanta, GA 7.72% 02/01/98 5,347 5,347
Post River........................ Atlanta, GA 7.72% 03/01/98 5,909 5,909
-------- --------
18,940 18,940
-------- --------
TAX EXEMPT FLOATING RATE (SECURED)
Post Ashford Series 1995.......... Atlanta, GA "AAA" NON-AMT + .575%(2)(3) 06/01/2025 9,895 9,895
Post Valley Series 1995........... Atlanta, GA "AAA" NON-AMT + .575%(2)(3) 06/01/2025 18,600 18,600
Post Brook Series 1995............ Atlanta, GA "AAA" NON-AMT + .575%(2)(3) 06/01/2025 4,300 4,300
Post Village (Atlanta) Hills
Series 1995..................... Atlanta, GA "AAA" NON-AMT + .575%(2)(3) 06/01/2025 7,000 7,000
Post Mill Series 1995............. Atlanta, GA "AAA" NON-AMT + .575%(2)(3) 06/01/2025 12,880 12,880
Post Canyon Series 1996........... Atlanta, GA "AAA" NON-AMT + .575%(2)(3) 06/01/2025 0 16,845
Post Corners Series 1996.......... Atlanta, GA "AAA" NON-AMT + .575%(2)(3) 06/01/2025 0 14,760
-------- --------
52,675 84,280
-------- --------
CONVENTIONAL FLOATING RATE
(SECURED)
Post Renaissance (Phase I and
II)............................. Atlanta, GA LIBOR + .55% 07/01/99 14,400 14,400
-------- --------
$ 14,400 $ 14,400
-------- --------
</TABLE>
S-30
<PAGE> 31
<TABLE>
<CAPTION>
MATURITY PRINCIPAL PRO
COMMUNITY LOCATION INTEREST RATE DATE(1) BALANCE FORMA
- ---------------------------------- ------------ --------------------------------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
SENIOR NOTES (UNSECURED)
Wachovia Bank of Georgia.......... N/A 7.15% 09/29/99 $ 25,000 $ 25,000
Northwestern Mutual Life.......... N/A 8.21% 06/07/2000 30,000 30,000
Wachovia Bank of Georgia.......... N/A 7.15% 09/29/2001 25,000 25,000
Northwestern Mutual Life.......... N/A 8.37% 06/07/2002 20,000 20,000
% Notes due 2003................ N/A % / /2003 N/A 100,000
-------- --------
100,000 200,000
-------- --------
LINES OF CREDIT (UNSECURED)
Revolver.......................... N/A LIBOR + .80% or prime minus .25% 05/01/99 139,000 19,900
Cash Management Line.............. N/A LIBOR + .75% or prime minus .25% 07/25/97 N/A 20,000
-------- --------
139,000 39,900
-------- --------
Total............................. $ 421,378 $422,278
======== ========
</TABLE>
- ---------------
(1) All of the mortgages can be prepaid at any time, subject to certain
prepayment penalties. All dates listed are final maturity dates assuming
the exercise of any available extension option by the Operating
Partnership.
(2) Bond financed (interest rate on bonds + credit enhancement fees).
(3) These bonds are also secured by Post Fountains at Lee Vista, Post Lake
(Orlando) and the Fountains and Meadows of Post Village for which the
Operating Partnership has economically defeased their respective bond
indebtedness.
(4) Subject to certain conditions at re-issuance, the credit enhancement runs to
June 1, 2025.
(5) On July 1, 1996, this bond was refunded with an issue having a maturity of
June 1, 2025 and an interest rate of SunTrust Non-AMT "AAA" tax free rate
plus a credit enhancement fee of .575%.
(6) On August 1, 1996, this bond was refunded with an issue having a maturity of
June 1, 2025 and an interest rate of SunTrust Non-AMT "AAA" tax free rate
plus a credit enhancement fee of .575%.
REFUNDABLE TAX EXEMPT BONDS
The Operating Partnership has previously issued tax-exempt bonds, secured
by certain communities, totaling $235,880, of which $86,842 has been
economically defeased, leaving $149,038 of principal amount of tax-exempt bonds
outstanding at June 30, 1996. As of June 30, 1996, $52,675 of the bonds
outstanding have been reissued with a maturity of June 1, 2025. The remaining
outstanding bonds, together with the economically defeased bonds, mature and may
be reissued, during the years 1996 through 1998. The Operating Partnership has
chosen economic defeasance of the bond obligations rather than a legal
defeasance in order to preserve the legal right to refund such obligations on a
tax-exempt basis at the stated maturity if the Operating Partnership then
determines that such refunding is beneficial to the Operating Partnership.
The following table shows the amount of bonds (both defeased and
outstanding) at June 30, 1996, which the Operating Partnership may reissue
during the years 1996 through 2025:
<TABLE>
<CAPTION>
DEFEASED OUTSTANDING TOTAL REISSUE
PORTION PORTION CAPACITY
-------- ----------- -------------
<S> <C> <C> <C>
1996(1).............................................. $ -- $ 31,605 $ 31,605
1997................................................. 5,490 51,460 56,950
1998................................................. 81,352 13,298 94,650
Thereafter -- 52,675 52,675
------- -------- --------
$ 86,842 $ 149,038 $ 235,880
======= ======== ========
</TABLE>
- ---------------
(1) 1996 amounts include Post Canyon and Post Corners bonds which matured and
were refunded on July 1, 1996 and August 1, 1996, respectively.
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<PAGE> 32
CAPITALIZATION OF FIXED ASSETS AND COMMUNITY IMPROVEMENTS
The Operating Partnership has established a policy of capitalizing those
expenditures relating to acquiring new assets, materially enhancing the value of
an existing asset, or substantially extending the useful life of an existing
asset. All expenditures necessary to maintain a community in ordinary operating
condition are expensed as incurred. During the first five years of a community
(which corresponds to the estimated depreciable life), carpet replacements are
expensed as incurred. Thereafter, carpet replacements are capitalized.
Acquisition of assets and community improvement expenditures for the three
months ended June 30, 1996 and 1995 are summarized as follows:
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30,
-----------------
1996 1995
------- -------
<S> <C> <C>
New community development and acquisition activity................. $95,664 $65,748
Non-recurring capital expenditures:
Vehicle access control gates..................................... 32 323
Other............................................................ 743 362
Recurring capital expenditures:
Carpet replacements.............................................. 410 433
Community additions and improvements............................. 982 333
Corporate additions and improvements............................. 339 407
------- -------
$98,170 $67,606
======= =======
</TABLE>
INFLATION
Substantially all of the leases at the communities allow, at the time of
renewal, for adjustments in the rent payable thereunder, and thus may enable the
Operating Partnership to seek increases in rents. The substantial majority of
these leases are for one year or less and the remaining leases are for up to two
years. At the expiration of a lease term, the Operating Partnership's lease
agreements provide that the term will be extended unless either the Operating
Partnership or the lessee gives at least sixty (60) days written notice of
termination; in addition, the Operating Partnership's policy permits the earlier
termination of a lease by a lessee upon thirty (30) days written notice to the
Operating Partnership and the payment of one month's additional rent as
compensation for early termination. The short-term nature of these leases
generally serves to reduce the risk to the Operating Partnership of the adverse
effect of inflation.
FUNDS FROM OPERATIONS AND CASH AVAILABLE FOR DISTRIBUTION
Historical Funds from Operations. The Operating Partnership considers FFO
an appropriate measure of performance of an equity REIT. The Operating
Partnership uses the National Association of Real Estate Investment Trust
("NAREIT") definition of FFO, which was adopted for periods beginning after
January 1, 1996. FFO for any period means the Consolidated Net Income of the
Operating Partnership and its Subsidiaries for such period excluding gains or
losses from debt restructuring and sales of property, plus depreciation of real
estate assets, and after adjustment for unconsolidated partnerships and joint
ventures, all determined on a consistent basis in accordance with generally
accepted accounting principles ("GAAP"). FFO presented herein is not necessarily
comparable to FFO presented by other real estate companies due to the fact that
not all real estate companies use the same definition. However, the Operating
Partnership's FFO is comparable to the FFO of real estate companies that use the
current NAREIT definition. FFO should not be considered as an alternative to net
income (determined in accordance with GAAP) as an indicator of the Operating
Partnership's financial performance or to cash flow from operating activities
(determined in accordance with GAAP) as a measure of the Operating Partnership's
liquidity, nor is it necessarily indicative of sufficient cash flow to fund all
of the Operating Partnership's needs or ability to service indebtedness or make
distributions. Cash available for distribution is defined as FFO less capital
expenditures funded by operations and loan amortization payments. The Operating
Partnership believes that in order to facilitate a
S-32
<PAGE> 33
clear understanding of the consolidated historical operating results of the
Operating Partnership, FFO and cash available for distribution should be
examined in conjunction with net income as presented in the consolidated
financial statements and data included elsewhere and incorporated by reference
in this Prospectus Supplement and the Prospectus.
FFO and cash available for distribution for the six months ended June 30,
1996 and 1995, and FFO for the years ended December 31, 1995, 1994 and 1993
presented on a historical basis are summarized in the following tables:
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
------------------------- ---------------------------------------
1996 1995 1995 1994 1993
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Net Income.............. $ 24,875 $ 15,688 $ 37,297 $ 24,730 $ (9,061)
Extraordinary item.... -- 803 1,120 4,413 13,628
----------- ----------- ----------- ----------- -----------
Gain on sale of real
estate assets...... -- -- (1,746) (2,832) --
Formation Transaction
expense............ -- -- -- -- 2,783
Income tax related to
gain on sale of
real estate
assets............. -- -- -- 1,338 --
Adjusted net
income........... 24,875 16,491 36,671 27,649 7,350
Depreciation (real
estate assets)..... 10,796 10,128 20,127 19,967 19,427
----------- ----------- ----------- ----------- -----------
Funds from Operations... 35,671 26,619 56,798 47,616 26,777
----------- ----------- ----------- ----------- -----------
Recurring capital
expenditures(1).... (1,392) (766) (2,967) (2,599) (2,047)
Non-recurring capital
expenditures(2).... (775) (685) (1,287) (1,302) (706)
Loan amortization
payments........... (105) (103) (199) (184) (149)
----------- ----------- ----------- ----------- -----------
Cash Available for
Distribution.......... $ 33,399 $ 25,065 $ 52,345 $ 43,531 $ 23,875
=========== =========== =========== =========== ===========
Cash Flow Provided From
(Used In):
Operating
activities......... $ 43,408 $ 33,856 $ 57,366 $ 43,819 $ 2,412
Investing
activities......... $ (98,170) $ (67,606) $ (114,531) $ (99,364) $ (51,152)
Financing
activities......... $ 47,378 $ 49,262 $ 60,881 $ 46,496 $ 49,647
Weighted average
Operating Partnership
Units outstanding..... 26,818,135 22,684,488 23,541,639 22,125,890 13,574,767
=========== =========== =========== =========== ===========
</TABLE>
- ---------------
(1) Recurring capital expenditures consisted primarily of $410 and $433 of
carpet replacement, $982 and $333 of other additions and improvements to
existing communities for the six months ended June 30, 1996 and 1995,
respectively. Since the Company does not add back the depreciation of
non-real estate assets in its calculation of FFO, capital expenditures of
$339 and $407 are excluded from the calculation of CAD for the six months
ended June 30, 1996 and 1995, respectively.
(2) Non-recurring capital expenditures consisted of community additions and
improvements of $743 and $362 for the six months ended June 30, 1996 and
1995, respectively, and the addition of vehicle access control gates to
communities of $32 and $323 for the six months ended June 30, 1996 and
1995, respectively.
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<PAGE> 34
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus Supplement and the accompanying Prospectus, including
documents incorporated by reference herein and therein, contain forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933, as
amended, and Section 21E of the Securities Exchange Act of 1934, as amended.
Forward-looking statements are inherently subject to risks and uncertainties,
many of which cannot be predicted with accuracy and some of which might not even
be anticipated. Future events and actual results, financial and otherwise, may
differ materially from the results discussed in the forward-looking statements.
Factors that might cause such a difference include, but are not limited to,
those discussed in "Management's Discussion and Analysis of Results of
Operations and Financial Condition" included and incorporated by reference
herein.
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<PAGE> 35
MANAGEMENT
The directors and executive officers of the Company and their positions are
as follows:
<TABLE>
<CAPTION>
NAME POSITION AND OFFICES HELD
- ------------------------- ----------------------------------------------------------
<S> <C>
John A. Williams......... Chairman of the Board, Chief Executive Officer and
Director
John T. Glover........... President, Chief Operating Officer, Treasurer and Director
W. Daniel Faulk, Jr...... President -- Post Apartment Development
Jeffrey A. Harris........ President -- Post Management Services
Martha J. Logan.......... President -- Post Management Division
Terry L. Chapman......... Executive Vice President -- Post Management Services
Richard A. Denny, III.... Executive Vice President -- Post Apartment Development
John D. Hooks............ Executive Vice President -- Post Management Services
Donald J. Rutzen......... Executive Vice President -- Post Landscape Services, Inc.
Sherry W. Cohen.......... Senior Vice President -- Post Corporate Services and
Secretary
Judy M. Denman........... Senior Vice President -- Post Corporate Services
R. Gregory Fox........... Senior Vice President -- Post Corporate Services
Leona J. McElroy......... Senior Vice President -- Post Corporate Services
John B. Mears............ Senior Vice President -- Post Apartment Development
Timothy A. Peterson...... Senior Vice President -- Post Corporate Services
Janie S. Maddox.......... Vice President -- Post Corporate Services
Arthur M. Blank.......... Director; President and Chief Operating Officer -- The
Home Depot, Inc.
Herschel M. Bloom........ Director; Partner -- King & Spalding
Virginia C. Crawford..... Director; Chairman of the Executive Committee and Vice
President -- Crawford & Company
Russell R. French........ Director; General Partner -- Noro-Moseley Partners, L.P.
William A. Parker, Jr.... Director; Chairman of the Board -- Seminole Investment
Company, L.L.C.
J.C. Shaw................ Director; Chairman Emeritus of the Board -- Shaw
Industries, Inc.
</TABLE>
S-35
<PAGE> 36
DESCRIPTION OF THE NOTES
GENERAL
The Notes constitute a series of securities (which is more fully described
in the accompanying Prospectus) to be issued pursuant to an indenture dated as
of , 1996, as amended or supplemented (the "Indenture"), between the
Operating Partnership and SunTrust Bank, Atlanta, as trustee (the "Trustee"),
and will be limited to an aggregate principal amount of $100,000,000. The terms
of the Notes include those provisions contained in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"). The Notes are subject to all such terms,
and holders of Notes are referred to the Indenture and the Trust Indenture Act
for a statement thereof. The following summary of certain provisions of the
Indenture does not purport to be complete and is subject to and qualified in its
entirety by reference to the Indenture.
The Notes will be direct, unsecured and unsubordinated obligations of the
Operating Partnership and will rank pari passu with all other unsecured and
unsubordinated indebtedness of the Operating Partnership from time to time
outstanding. The Notes will be effectively subordinated to mortgages and other
secured indebtedness of the Operating Partnership. As of June 30, 1996, such
secured indebtedness aggregated approximately $182.4 million and such unsecured
and unsubordinated indebtedness aggregated approximately $239.0 million
(approximately $239.9 million on a pro forma basis). See "Capitalization."
Subject to certain limitations set forth in the Indenture, and as described
under "Certain Covenants -- Limitations on Incurrence of Debt" below, the
Indenture will permit the Operating Partnership to incur additional secured and
unsecured indebtedness.
The Notes will mature on , 2003 (the "Maturity Date"). The
Notes are not subject to any sinking fund provisions. The Notes will be issued
only in fully registered, book-entry form without coupons, in denominations of
$1,000 and integral multiples thereof, except under the limited circumstances
described below under "Book-Entry System."
Except as described under "Certain Covenants -- Limitations on Incurrence
of Debt" below and under "Description of Debt Securities -- Merger,
Consolidation or Sale" in the accompanying Prospectus, the Indenture does not
contain any other provisions that would limit the ability of the Operating
Partnership to incur indebtedness or that would afford holders of the Notes
protection in the event of (i) a highly leveraged or similar transaction
involving the Operating Partnership, the management of the Operating Partnership
or the Company, or any affiliate of any of them, (ii) a change of control of the
Operating Partnership or the Company, or (iii) a reorganization, restructuring,
merger or similar transaction involving the Operating Partnership that may
adversely affect the holders of the Notes. In addition, subject to the
limitations set forth under "Description of Debt Securities -- Merger,
Consolidation or Sale" in the accompanying Prospectus, the Operating Partnership
may, in the future, enter into certain transactions such as the sale of all or
substantially all of its assets or the merger or consolidation of the Operating
Partnership that would increase the amount of the Operating Partnership's
indebtedness or substantially reduce or eliminate the Operating Partnership's
assets, which may have an adverse effect on the Operating Partnership's ability
to service its indebtedness, including the Notes. The Operating Partnership and
its management have no present intention of engaging in a highly leveraged or
similar transaction involving the Operating Partnership.
PRINCIPAL AND INTEREST
The Notes will bear interest at % per annum from , 1996 or
from the immediately preceding Interest Payment Date (as defined below) to which
interest has been paid, payable semi-annually in arrears on each and
, commencing , 1997 (each, an "Interest Payment Date"),
and on the applicable Maturity Date, to the persons (the "Holders") in whose
names the applicable Notes are registered in the security register applicable to
the Notes at the close of business on the date 15 calendar days prior to such
payment day regardless of whether such day is a Business Day, as defined below
(each, a "Regular Record Date"). Interest on the Notes will be computed on the
basis of a 360-day year of twelve 30-day months.
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<PAGE> 37
The principal of each Note payable on the applicable Maturity Date will be
paid against presentation and surrender of such Note at the corporate trust
office of the Trustee, located initially c/o First National Bank of Chicago, 14
Wall Street, Suite 4607, New York, New York 10005, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts.
If any Interest Payment Date or a Maturity Date falls on a day that is not
a Business Day, the required payment shall be made on the next Business Day as
if it were made on the date such payment was due and no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date
or such Maturity Date, as the case may be. "Business Day" means any day, other
than a Saturday or Sunday, on which banking institutions in The City of New York
are open for business.
CERTAIN COVENANTS
LIMITATIONS ON INCURRENCE OF DEBT. The Operating Partnership will not, and
will not permit a Subsidiary to, incur any Debt (as defined below), other than
intercompany Debt (representing Debt to which the only parties are the Company,
the Operating Partnership and any of their Subsidiaries, but only so long as
such Debt is held solely by any of the Company, the Operating Partnership and
any Subsidiary) if, immediately after giving effect to the incurrence of such
additional Debt, the aggregate principal amount of all outstanding Debt of the
Operating Partnership and its Subsidiaries on a consolidated basis determined in
accordance with generally accepted accounting principles is greater than 60% of
the sum of (i) Total Assets (as defined below) as of the end of the fiscal
quarter covered in the Operating Partnership's Annual Report on Form 10-K or
Quarterly Report on Form 10-Q, as the case may be, most recently filed with the
Commission (or, if such filing is not permitted under the Exchange Act, with the
Trustee) prior to the incurrence of such additional Debt and (ii) the increase
in Total Assets from the end of such quarter including, without limitation, any
increase in Total Assets resulting from the incurrence of such additional Debt
(such increase together with the Operating Partnership's Total Assets is
referred to as the "Adjusted Total Assets").
In addition to the foregoing limitations on the incurrence of Debt, the
Operating Partnership will not, and will not permit any Subsidiary to, incur any
Secured Debt of the Operating Partnership or any Subsidiary if, immediately
after giving effect to the incurrence of such additional Secured Debt, the
aggregate principal amount of all outstanding Secured Debt of the Operating
Partnership and its Subsidiaries on a consolidated basis is greater than 40% of
Adjusted Total Assets.
In addition to the foregoing limitation on the incurrence of Debt, the
Operating Partnership will not, and will not permit any Subsidiary to, incur any
Debt, other than intercompany Debt, if the ratio of Consolidated Income
Available for Debt Service to the Annual Debt Service Charge (in each case as
defined below) for the period consisting of the four consecutive fiscal quarters
most recently ended prior to the date on which such additional Debt is to be
incurred shall have been less than 1.5 to 1, on a pro forma basis after giving
effect to the incurrence of such Debt and to the application of the proceeds
therefrom, and calculated on the assumption that (i) such Debt and any other
Debt incurred by the Operating Partnership or its Subsidiaries since the first
day of such four-quarter period and the application of the proceeds therefrom,
including to refinance other Debt, had occurred at the beginning of such period,
(ii) the repayment or retirement of any other Debt by the Operating Partnership
or its Subsidiaries since the first day of such four-quarter period had been
repaid or retired at the beginning of such period (except that, in making such
computation, the amount of Debt under any revolving credit facility shall be
computed based upon the average daily balance of such Debt during such period),
and (iii) in the case of any increase or decrease in Total Assets, or any other
acquisition or disposition by the Operating Partnership or any Subsidiary of any
asset or group of assets, since the first day of such four-quarter period,
including, without limitation, by merger, stock purchase or sale, or asset
purchase or sale, such increase, decrease or other acquisition or disposition or
any related repayment of Debt had occurred as of the first day of such period
with the appropriate adjustments to net income and Debt levels with respect to
such increase, decrease or other acquisition or disposition being included in
such pro forma calculation. For purposes of the adjustments referred to in
clause (iii) of the preceding sentence, any income earned (or loss incurred) as
a result of any such increase, decrease or other acquisition or disposition
referred to in clause (iii) for a period less than such four-quarter period
shall be annualized for such four-quarter period.
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<PAGE> 38
MAINTENANCE OF TOTAL UNENCUMBERED ASSETS. The Operating Partnership is
required to maintain Total Unencumbered Assets of not less than 150% of the
aggregate outstanding principal amount of the Unsecured Debt of the Operating
Partnership.
As used herein:
"Annual Debt Service Charge" as of any date means the amount which is
expensed in any 12-month period for interest on Debt of the Operating
Partnership and its Subsidiaries.
"Consolidated Income Available for Debt Service" for any period means
Consolidated Net Income plus amounts which have been deducted in
determining Consolidated Net Income during such period for (i) Consolidated
Interest Expense, (ii) provision for taxes of the Operating Partnership and
its Subsidiaries based on income, (iii) amortization (other than
amortization of debt discount) and depreciation, (iv) provisions for losses
from sales or joint ventures, (v) increases in deferred taxes and other
non-cash items, (vi) charges resulting from a change in accounting
principles, and (vii) charges for early extinguishment of debt, and less
amounts which have been added in determining Consolidated Net Income during
such period for (a) provisions for gains from sales or joint ventures, and
(b) decreases in deferred taxes and other non-cash items.
"Consolidated Interest Expense" means, for any period, and without
duplication, all interest (including the interest component of rentals on
capitalized leases, letter of credit fees, commitment fees and other like
financial charges) and all amortization of debt discount on all Debt
(including, without limitation, payment-in-kind, zero coupon and other like
securities) of the Operating Partnership and its Subsidiaries, but
excluding legal fees, title insurance charges and other out-of-pocket fees
and expenses incurred in connection with the issuance of Debt, all
determined in accordance with generally accepted accounting principles.
"Consolidated Net Income" for any period means the amount of
consolidated net income (or loss) of the Operating Partnership and its
Subsidiaries for such period determined on a consolidated basis in
accordance with generally accepted accounting principles.
"Debt" of the Operating Partnership or any Subsidiary means any
indebtedness of the Operating Partnership and its Subsidiaries, whether or
not contingent, in respect of (i) borrowed money evidenced by bonds, notes,
debentures or similar instruments, (ii) indebtedness secured by any
mortgage, pledge, lien, charge, encumbrance or any security interest
existing on property owned by the Operating Partnership and its
Subsidiaries, (iii) the reimbursement obligations, contingent or otherwise,
in connection with any letters of credit actually issued or amounts
representing the balance deferred and unpaid of the purchase price of any
property except any such balance that constitutes an accrued expense or
trade payable or (iv) any lease of property by the Operating Partnership
and its Subsidiaries as lessee which is reflected in the Operating
Partnership's consolidated balance sheet as a capitalized lease in
accordance with generally accepted accounting principles, in the case of
items of indebtedness under (i) through (iii) above to the extent that any
such items (other than letters of credit) would appear as a liability on
the Operating Partnership's consolidated balance sheet in accordance with
generally accepted accounting principles, and also includes, to the extent
not otherwise included, any obligation by the Operating Partnership or any
Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise
(other than for purposes of collection in the ordinary course of business),
indebtedness of another person (other than the Operating Partnership or any
Subsidiary) (it being understood that Debt shall be deemed to be incurred
by the Operating Partnership and its Subsidiaries on a consolidated basis
whenever the Operating Partnership and its Subsidiaries on a consolidated
basis shall create, assume, guarantee or otherwise become liable in respect
thereof).
"Secured Debt" means Debt secured by any mortgage, trust deed, deed of
trust, deed to secure debt, security agreement, pledge, conditional sale or
other title retention agreement, capitalized lease, or other like agreement
granting or conveying security title to or a security interest in real
property or other tangible assets.
S-38
<PAGE> 39
"Senior Executive Group" shall mean, collectively, those individuals
holding the offices of Chairman, President, Chief Executive Officer, Chief
Operating Officer, or any Executive Vice President of the Company.
"Subsidiary" means (i) any corporation or other entity the majority of
the shares of the non-voting capital stock or other equivalent ownership
interests of which (except directors' qualifying shares) are at the time
directly or indirectly owned by the Operating Partnership or the Company,
and the majority of the shares of the voting capital stock or other
equivalent ownership interests of which (except directors' qualifying
shares) are at the time directly or indirectly owned by the Operating
Partnership, the Company, any other Subsidiary, and/or one or more
individuals of the Senior Executive Group (or, in the event of death or
disability of any of such individuals, his/her respective legal
representative(s)), or such individuals' successors in office as an officer
of the Company or the Secretary of such Subsidiary, and (ii) any other
entity (other than the Company) the accounts of which are consolidated with
the accounts of the Operating Partnership.
"Total Assets" as of any date means the sum of (i) Undepreciated Real
Estate Assets and (ii) all other assets of the Operating Partnership and
its Subsidiaries on a consolidated basis determined in accordance with
generally accepted accounting principles (but excluding intangibles and
accounts receivable).
"Total Unencumbered Assets" as of any date means the sum of (i) those
Undepreciated Real Estate Assets not securing any portion of Secured Debt
and (ii) all other assets of the Operating Partnership and its Subsidiaries
not securing any portion of Secured Debt determined in accordance with
generally accepted accounting principles (but excluding accounts receivable
and intangibles).
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the
Operating Partnership and its Subsidiaries on such date, before
depreciation and amortization, determined on a consolidated basis in
accordance with generally accepted accounting principles.
"Unsecured Debt" means Debt of the Operating Partnership or any
Subsidiary that is not Secured Debt.
Reference is made to the section entitled "Description of Debt
Securities -- Certain Covenants" in the accompanying Prospectus for a
description of additional covenants applicable to the Notes. Compliance with the
covenants described herein and such additional covenants with respect to the
Notes generally may not be waived by the Board of Directors of the Company, as
general partner of the Operating Partnership, or by the Trustee unless the
Holders of at least a majority in principal amount of all outstanding Notes
consent to such waiver; provided, however, that the defeasance and covenant
defeasance provisions of the Indenture described under "Description of Debt
Securities -- Discharge, Defeasance and Covenant Defeasance" in the accompanying
Prospectus will apply to the Notes, including with respect to the covenants
described in this Prospectus Supplement.
OPTIONAL REDEMPTION
The Notes may be redeemed at any time at the option of the Operating
Partnership, in whole or from time to time in part, at a redemption price equal
to the sum of (i) the principal amount of the Notes being redeemed plus accrued
interest thereon to the redemption date and (ii) the Make-Whole Amount (as
defined below), if any, with respect to such Notes (the "Redemption Price").
If notice has been given as provided in the Indenture and funds for the
redemption of any Notes called for redemption shall have been made available on
the redemption date referred to in such notice, such Notes will cease to bear
interest on the date fixed for such redemption specified in such notice and the
only right of the Holders of the Notes will be to receive payment of the
Redemption Price.
Notice of any optional redemption of any Notes will be given to Holders at
their addresses, as shown in the security register for the Notes, not more than
60 nor less than 30 days prior to the date fixed for
S-39
<PAGE> 40
redemption. The notice of redemption will specify, among other items, the
Redemption Price and the principal amount of the Notes held by such Holder to be
redeemed.
If less than all the Notes are to be redeemed at the option of the
Operating Partnership, the Operating Partnership will notify the Trustee at
least 45 days prior to giving notice of redemption (or such shorter period as is
satisfactory to the Trustee) of the aggregate principal amount of Notes to be
redeemed and their redemption date. The Trustee shall select, in such manner as
it shall deem fair and appropriate, Notes to be redeemed in whole or in part.
As used herein:
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of any Notes, the excess, if any, of (i) the
aggregate present value as of the date of such redemption or accelerated
payment of each dollar of principal being redeemed or paid and the amount
of interest (exclusive of interest accrued to the date of redemption or
accelerated payment) that would have been payable in respect of each such
dollar if such redemption or accelerated payment had not been made,
determined by discounting, on a semi-annual basis, such principal and
interest at the Reinvestment Rate (determined on the third Business Day
preceding the date such notice of redemption is given or declaration of
acceleration is made) from the respective dates on which such principal and
interest would have been payable if such redemption or accelerated payment
had not been made to the date of redemption or accelerated payment, over
(ii) the aggregate principal amount of the Notes being redeemed or paid.
"Reinvestment Rate" means .25% plus the arithmetic mean of the yields
under the heading "Week Ending" published in the most recent Statistical
Release under the caption "Treasury Constant Maturities" for the maturity
(rounded to the nearest month) corresponding to the remaining life to
maturity, as of the payment date of the principal being redeemed or paid.
If no maturity exactly corresponds to such maturity, yields for the two
published maturities most closely corresponding to such maturity shall be
calculated pursuant to the immediately preceding sentence and the
Reinvestment Rate shall be interpolated or extrapolated from such yields on
a straight-line basis, rounding in each of such relevant periods to the
nearest month. For the purposes of calculating the Reinvestment Rate, the
most recent Statistical Release published prior to the date of
determination of the Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which reports yields on actively traded United
States government securities adjusted to constant maturities, or, if such
statistical release is not published at the time of any determination under
the Indenture, then such other reasonably comparable index which shall be
designated by the Operating Partnership.
BOOK-ENTRY SYSTEM
The following are summaries of certain rules and operating procedures of
DTC that affect the payment of principal and interest and transfers of interests
in the Global Note. Upon issuance, the Notes will only be issued in the form of
a Global Note which will be deposited with, or on behalf of, DTC and registered
in the name of Cede & Co., as nominee of DTC. Unless and until it is exchanged
in whole or in part for Notes in definitive form under the limited circumstances
described below, a Global Note may not be transferred except as a whole (i) by
DTC to a nominee of DTC, (ii) by a nominee of DTC to DTC or another nominee of
DTC or (iii) by DTC or any such nominee to a successor of DTC or a nominee of
such successor.
Ownership of beneficial interests in a Global Note will be limited to
persons that have accounts with DTC for such Global Note ("participants") or
persons that may hold interests through participants. Upon the issuance of a
Global Note, DTC will credit, on its book-entry registration and transfer
system, the participants' accounts with the respective principal amounts of the
Notes represented by such Global Note beneficially owned by such participants.
Ownership of beneficial interests in the Global Notes will be shown on, and the
transfer of such ownership interests will be effected only through, records
maintained by DTC (with respect to
S-40
<PAGE> 41
interests of participants) and on the records of participants (with respect to
interests of persons holding through participants). The laws of some states may
require that certain purchasers of securities take physical delivery of such
securities in definitive form. Such laws may limit or impair the ability to own,
transfer or pledge beneficial interests in the Global Note.
So long as DTC or its nominee is the registered owner of a Global Note, DTC
or its nominee, as the case may be, will be considered the sole owner or Holder
of the Notes represented by such Global Note for all purposes under the
Indenture. Except as set forth below, owners of beneficial interests in a Global
Note will not be entitled to have Notes represented by such Global Note
registered in their names, will not receive or be entitled to receive physical
delivery of such Notes in certificated form and will not be considered the
registered owners or Holders thereof under the Indenture. Accordingly, each
person owning a beneficial interest in a Global Note must rely on the procedures
of DTC and, if such person is not a participant, on the procedures of the
participant through which such person owns its interest, to exercise any rights
of a Holder under the Indenture. The Operating Partnership understands that
under existing industry practices, if the Operating Partnership requests any
action of Holders or if an owner of a beneficial interest in a Global Note
desires to give or take any action that a Holder is entitled to give or take
under the Indenture, DTC would authorize the participants holding the relevant
beneficial interests to give or take such action, and such participants would
authorize beneficial owners owning through such participants to give or take
such action or would otherwise act upon the instructions of beneficial owners
holding through them.
Principal and interest payments on interests represented by a Global Note
will be made to DTC or its nominee, as the case may be, as the registered owner
of such Global Note. None of the Operating Partnership, the Trustee or any other
agent of the Operating Partnership or agent of the Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership of interests in the Global Note
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
The Operating Partnership expects that DTC, upon receipt of any payment of
principal or interest in respect of a Global Note, will immediately credit
participants' accounts with payments in amounts proportionate to their
respective beneficial interests in such Global Note as shown on the records of
DTC. The Operating Partnership also expects that payments by participants to
owners of beneficial interests in the Global Note held through such participants
will be governed by standing customer instructions and customary practice, as is
now the case with securities held for the accounts of customers in bearer form
or registered in "street name," and will be the responsibility of such
participants.
If DTC is at any time unwilling or unable to continue as depository for the
Notes and the Operating Partnership fails to appoint a successor depository
registered as a clearing agency under the Exchange Act within 90 days, the
Operating Partnership will issue the Notes in definitive form in exchange for
the Global Note. Any Notes issued in definitive form in exchange for the Global
Note will be registered in such name or names, and will be issued in
denominations of $1,000 and such integral multiples thereof, as DTC shall
instruct the Trustee. It is expected that such instructions will be based upon
directions received by DTC from participants with respect to ownership of
beneficial interests in the Global Note.
DTC is a limited-purpose trust company organized under the Banking Law of
the State of New York, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code, and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
Exchange Act. DTC was created to hold securities of its participants and to
facilitate the clearance and settlement of transactions among its participants
in such securities through electronic book-entry changes in accounts of the
participants, thereby eliminating the need for physical movement of securities
certificates. DTC's participants include securities brokers and dealers, banks,
trust companies, clearing corporations and certain other organizations, some of
which (and/or their representatives) own DTC. Access to the DTC book-entry
system is also available to others, such as banks, brokers and dealers and trust
companies that clear through or maintain a custodial relationship with a
participant, either directly or indirectly.
S-41
<PAGE> 42
SAME-DAY SETTLEMENT AND PAYMENT
Settlement for the Notes will be made by the Underwriters (as defined
herein) in immediately available funds. All payments of principal and interest
in respect of the Notes will be made by the Operating Partnership in immediately
available funds.
Secondary trading in long-term notes and debentures of corporate issuers is
generally settled in clearing house or next-day funds. In contrast, the Notes
will trade in DTC's Same-Day Funds Settlement System until maturity or until the
Notes are issued in certificated form, and secondary market trading activity in
the Notes will therefore be required by DTC to settle in immediately available
funds. No assurance can be given as to the effect, if any, of settlement in
immediately available funds on trading activity in the Notes.
S-42
<PAGE> 43
UNDERWRITING
Subject to the terms and conditions contained in the terms agreement and
related purchase agreement (collectively, the "Underwriting Agreement"), the
Operating Partnership has agreed to sell to Merrill Lynch, Pierce Fenner & Smith
Incorporated ("Merrill Lynch"), J.P. Morgan Securities Inc. and Dean Witter
Reynolds Inc. (the "Underwriters"), and the Underwriters have severally agreed
to purchase, the respective principal amount of the Notes set forth after their
names below. The Underwriting Agreement provides that the obligations of the
Underwriters are subject to certain conditions precedent, and that the
Underwriters will be obligated to purchase all of the Notes if any are
purchased.
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
UNDERWRITER OF NOTES
- ----------------------------------------------------------------------------- ----------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.................................................... $
J.P. Morgan Securities Inc...................................................
Dean Witter Reynolds Inc.....................................................
------------
Total.............................................................. $100,000,000
============
</TABLE>
The Underwriters have advised the Operating Partnership that they propose
initially to offer the Notes to the public at the public offering price set
forth on the cover page of this Prospectus Supplement, and to certain dealers at
such price less a concession not in excess of % of the principal amount
thereof. The Underwriters may allow, and such dealers may reallow, a discount
not in excess of % of principal amount to certain other dealers. After the
initial public offering, the public offering price, concession and discount may
be changed.
The Notes are a new issue of securities with no established trading market.
The Operating Partnership does not intend to apply for listing of the Notes on a
national securities exchange. The Operating Partnership has been advised by the
Underwriters that the Underwriters intend to make a market in the Notes as
permitted by applicable laws and regulations, but the Underwriters are not
obligated to do so and may discontinue market-making at any time without notice.
No assurance can be given as to the liquidity of the trading market for the
Notes.
The Operating Partnership has agreed to indemnify the Underwriters against
certain liabilities, including liabilities under the Securities Act of 1933, as
amended, or to contribute to payments the Underwriters may be required to make
in respect thereof.
Each of the Underwriters from time to time has provided investment banking
and financial advisory services to the Company and the Operating Partnership.
Merrill Lynch and Dean Witter Reynolds Inc. acted as representatives of various
underwriters in connection with public offerings of the Company's Common Stock
in 1993, 1994 and 1995.
LEGAL MATTERS
The legality of the Notes offered pursuant to this Prospectus Supplement
and the Prospectus will be passed upon for the Operating Partnership by King &
Spalding, Atlanta, Georgia. Herschel M. Bloom, a member of King & Spalding, is a
director of the Company.
Certain legal matters related to the Offering will be passed upon for the
Underwriters by Hogan & Hartson L.L.P., Washington, D.C.
S-43
<PAGE> 44
PROSPECTUS
[LOGO]
$600,000,000
POST PROPERTIES, INC.
COMMON STOCK, PREFERRED STOCK AND DEPOSITARY SHARES
POST APARTMENT HOMES, L.P.
DEBT SECURITIES
------------------------
Post Properties, Inc. (the "Company") may from time to time offer in one or
more series or classes (i) shares of its common stock, par value $0.01 per share
(the "Common Stock"), (ii) shares of its preferred stock, par value $0.01 per
share (the "Preferred Stock") and (iii) shares of Preferred Stock represented by
Depositary Shares (the "Depositary Shares"), with an aggregate public offering
price of up to $300,000,000 (or its equivalent in another currency based on the
exchange rate at the time of sale) in amounts, at prices and on terms to be
determined at the time of offering. Post Apartment Homes, L.P. (the "Operating
Partnership") may from time to time offer in one or more series unsecured non-
convertible debt securities ("Debt Securities"), with an aggregate public
offering price of up to $300,000,000 (or its equivalent in another currency
based on the exchange rate at the time of sale) in amounts, at prices and on
terms to be determined at the time of offering. The Common Stock, Preferred
Stock, Depositary Shares and Debt Securities (collectively, the "Securities")
may be offered, separately or together, in separate series in amounts, at prices
and on terms to be set forth in one or more supplements to this Prospectus
(each, a "Prospectus Supplement").
The specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in the applicable Prospectus Supplement and
will include, where applicable (i) in the case of Common Stock, any initial
public offering price; (ii) in the case of Preferred Stock, the specific title
and stated value, any dividend, liquidation, redemption, conversion, voting and
other rights, and any initial public offering price; (iii) in the case of
Depositary Shares, the fractional share of Preferred Stock represented by each
such Depositary Share; and (iv) in the case of Debt Securities, the specific
title, aggregate principal amount, currency, form (which may be registered or
bearer, or certificated or global), authorized denominations, maturity, rate (or
manner of calculation thereof) and time of payment of interest, terms for
redemption at the option of the Operating Partnership or repayment at the option
of the holder, terms for sinking fund payments, covenants and any initial public
offering price. In addition, such specific terms may include limitations on
direct or beneficial ownership and restrictions on transfer of the Securities,
in each case as may be appropriate to preserve the status of the Company as a
real estate investment trust ("REIT") for Federal income tax purposes.
The applicable Prospectus Supplement will also contain information, where
applicable, about certain United States Federal income tax considerations
relating to, and any listing on a securities exchange of, the Securities covered
by such Prospectus Supplement.
The Securities may be offered directly, through agents designated from time
to time by the Company or the Operating Partnership, or to or through
underwriters or dealers. If any agents or underwriters are involved in the sale
of any of the Securities, their names, and any applicable purchase price, fee,
commission or discount arrangement between or among them, will be set forth, or
will be calculable from the information set forth, in the applicable Prospectus
Supplement. See "Plan of Distribution." No Securities may be sold without
delivery of the applicable Prospectus Supplement describing the method and terms
of the offering of such series of Securities.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED
THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
------------------------
The date of this Prospectus is August 9, 1996.
<PAGE> 45
AVAILABLE INFORMATION
The Company and the Operating Partnership are subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith file reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information filed by the Company and the
Operating Partnership may be examined without charge at, or copies obtained upon
payment of prescribed fees from, the Public Reference Section of the Commission
at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and are also
available for inspection and copying at the regional offices of the Commission
located at Seven World Trade Center, New York, New York 10048 and at 500 West
Madison Street, Chicago, Illinois 60661-2511. In addition, the Company's Common
Stock is listed on the New York Stock Exchange and such material can also be
inspected and copied at the offices of the New York Stock Exchange, Inc., 20
Broad Street, New York, New York 10005.
The Company and the Operating Partnership have filed with the Commission,
450 Fifth Street, N.W., Washington, D.C. 20549, a Registration Statement on Form
S-3 under the Securities Act of 1933, as amended (the "Securities Act"), and the
rules and regulations promulgated thereunder, with respect to the Securities.
This Prospectus, which is part of the Registration Statement, does not contain
all of the information set forth in the Registration Statement and the exhibits
and financial schedules thereto. For further information concerning the Company,
the Operating Partnership and the Securities, reference is made to the
Registration Statement and the exhibits and schedules filed therewith, which may
be examined without charge at, or copies obtained upon payment of prescribed
fees from, the Commission and its regional offices at the locations listed
above. Any statements contained herein concerning the provisions of any document
are not necessarily complete, and, in each instance, reference is made to the
copy of such document filed as an exhibit to the Registration Statement or
otherwise filed with the Commission. Each such statement is qualified in its
entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company (File No. 1-12080)
and the Operating Partnership (File No. 0-28226) with the Commission are
incorporated herein by reference:
(a) the Company's Annual Report on Form 10-K for the year ended
December 31, 1995, as amended by Forms 10-K/A for the year ended December
31, 1995 as filed on June 17, 1996 and July 23, 1996;
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996, as amended by Form 10-Q/A for the quarter ended March 31,
1996 as filed on June 17, 1996;
(c) the description of the Common Stock of the Company included in the
Company's Registration Statement on Form 8-A, dated July 22, 1993; and
(d) the Operating Partnership's Report on Form 10, dated April 15,
1996, as amended on June 17, 1996 and July 23, 1996.
All documents filed by the Company and/or the Operating Partnership
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of this Prospectus and prior to the termination of the Offering shall
be deemed to be incorporated by reference in this Prospectus and made a part
hereof from the date of the filing of such documents. Any statement contained in
a document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other document subsequently
filed with the Commission which also is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company and the Operating Partnership will provide without charge to
each person, including any beneficial owner, to whom this Prospectus is
delivered, upon the written or oral request of such person, a copy of any or all
of the documents incorporated by reference herein (not including the exhibits to
such documents, unless such exhibits are specifically incorporated by reference
in such documents). Request for such copies should be directed to: Post
Properties, Inc., 3350 Cumberland Circle, Suite 2200, Atlanta, Georgia 30339,
Attention: Secretary, telephone (770) 850-4400.
2
<PAGE> 46
THE COMPANY AND THE OPERATING PARTNERSHIP
The Company is a self-administered and self-managed equity real estate
investment trust (a "REIT") and is one of the largest developers and operators
of upscale multifamily apartment communities in the Southeastern United States.
As of June 1, 1996, the Company owned 47 stabilized communities (the
"Communities") containing 16,996 apartment units located primarily in
metropolitan Atlanta, Georgia and Tampa, Florida. In addition, as of June 1,
1996, the Company had under construction or in initial lease-up six new
communities and an addition to an existing community in the Atlanta, Tampa and
Charlotte metropolitan areas that will contain an aggregate of 2,274 apartment
units when completed. For the year ended December 31, 1995, the average economic
occupancy rate of the 37 Communities and the first phase of two additional
Communities stabilized for the entire period was 96.0%. The average monthly
rental rate per apartment unit at these Communities for the same period was
$710. The Company also manages through affiliates three communities with 866
apartment units under the Post(R) brand name for third parties and approximately
9,900 additional apartment units owned by third parties. The Company is a
fully-integrated organization with multifamily development, acquisition,
operation and asset management expertise and has approximately 1,100 employees,
none of whom is a party to a collective bargaining agreement.
The Company is the sole general partner of, and controls a majority of the
limited partnership interests in, the Operating Partnership. As of March 31,
1996, the Company owned 80.8% of the outstanding partnership interests in the
Operating Partnership. The Company conducts all its business through the
Operating Partnership and its subsidiaries.
As of March 31, 1996, the Company and the Operating Partnership had
outstanding indebtedness of $354.4 million. Any applicable Prospectus Supplement
relating to offered securities will set forth the outstanding indebtedness of
the issuer and its subsidiaries as of a recent date.
The Company is a Georgia corporation that was founded in 1971. The
Operating Partnership is a Georgia limited partnership that was formed in 1993.
The Company's and the Operating Partnership's executive offices are located at
3350 Cumberland Circle, Suite 2200, Atlanta, Georgia 30339 and their telephone
number is (770) 850-4400.
USE OF PROCEEDS
The Company is required, by the terms of the partnership agreement of the
Operating Partnership, to invest the net proceeds of any sale of Common Stock,
Preferred Stock or Depositary Shares in the Operating Partnership in exchange
for additional Units. Unless otherwise indicated in the applicable Prospectus
Supplement, the Company and the Operating Partnership intend to use such net
proceeds and the net proceeds from the sale of Debt Securities for general
corporate purposes including, without limitation, the acquisition and
development of multi-family communities and the repayment of debt. Pending
application of the net proceeds, the Operating Partnership will invest such
proceeds in interest-bearing accounts and short-term, interest-bearing
securities, which are consistent with the Company's intention to continue to
qualify for taxation as a REIT. Such investments may include, for example,
obligations of the Government National Mortgage Association, other government
and government agency securities, certificates of deposit, interest-bearing bank
deposits and mortgage loan participations.
RATIO OF EARNINGS TO FIXED CHARGES
The Company's and the Operating Partnership's ratios of earnings to fixed
charges for the three months ended March 31, 1996 were 2.7, for the year ended
December 31, 1995 were 2.1, for the year ended December 31, 1994 were 2.1 and
for the year ended December 31, 1993 were 1.1. There was no preferred stock
outstanding for any of the periods shown above. Accordingly, the ratio of
earnings to combined fixed charges and preferred stock dividends is identical to
the ratio of earnings to fixed charges.
For purposes of computing these ratios, earnings have been calculated by
adding fixed charges, excluding capitalized interest, to pre-tax income from
continuing operations. Fixed charges consist of interest costs,
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whether expensed or capitalized, the interest component of rental expense and
amortization of debt issuance costs.
Prior to the completion of the Company's reorganization in July 1993, the
Company maintained a different capital structure. As a result, although the
original properties have historically generated positive net cash flow, the
financial statements of the Company show net losses for the fiscal years ended
December 31, 1992 and 1991. Consequently, the computation of the ratio of
earnings to fixed charges for such periods indicate that earnings were
inadequate to cover fixed charges by approximately $10.0 million and $17.8
million for the fiscal years ended December 31, 1992 and 1991, respectively.
The recapitalization of the Company effected in connection with the
reorganization permitted the Company to significantly deleverage, resulting in
an improved ratio of earnings to fixed charges for periods subsequent to the
reorganization.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an Indenture (the "Indenture"),
between the Operating Partnership and a Trustee (the "Trustee") chosen by the
Operating Partnership and qualified to act as Trustee under the Trust Indenture
Act of 1939, as amended (the "TIA"). The Indenture has been filed as an exhibit
to the Registration Statement of which this Prospectus is a part and will be
available for inspection at the corporate trust office of the trustee or as
described above under "Available Information." The Indenture is subject to, and
governed by, the TIA. The statements made hereunder relating to the Indenture
and the Debt Securities to be issued thereunder are summaries of all material
provisions thereof and do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all provisions of the Indenture and
such Debt Securities. All section references appearing herein are to sections of
the Indenture.
GENERAL
The Debt Securities will be direct, unsecured obligations of the Operating
Partnership and will rank equally with all other unsecured and unsubordinated
indebtedness of the Operating Partnership. At December 31, 1995, the total
outstanding debt of the Operating Partnership was $349.7 million, all of which
was unsubordinated indebtedness. Of such outstanding debt, $203.7 million was
secured debt. The Debt Securities may be issued without limit as to aggregate
principal amount, in one or more series, in each case as established from time
to time in or pursuant to authority granted by a resolution of the Board of
Directors of the Company as sole general partner of the Operating Partnership or
as established in one or more indentures supplemental to the Indenture. All Debt
Securities of one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the holders
of the Debt Securities of such series, for issuances of additional Debt
Securities of such series (Section 301).
The Indenture provides that there may be more than one Trustee thereunder,
each with respect to one or more series of Debt Securities. Any Trustee under
the Indenture may resign or be removed with respect to one or more series of
Debt Securities, and a successor Trustee may be appointed to act with respect to
such series (Section 608). In the event that two or more persons are acting as
Trustee with respect to different series of Debt Securities, each such Trustee
shall be a trustee of a trust under the Indenture separate and apart from the
trust administered by any other Trustee (Section 609), and, except as otherwise
indicated herein, any action described herein to be taken by a Trustee may be
taken by each such Trustee with respect to, and only with respect to, the one or
more series of Debt Securities for which it is Trustee under the Indenture.
Reference is made to the Prospectus Supplement relating to the series of
Debt Securities offered thereby for the specific terms thereof, including:
(1) the title of such Debt Securities;
(2) any limit on the aggregate principal amount of such Debt
Securities that may be authenticated and delivered under the Indenture;
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(3) the percentage of the principal amount at which such Debt
Securities will be issued and, if other than the principal amount thereof,
the portion of the principal amount thereof payable upon declaration of
acceleration of the maturity thereof;
(4) the date or dates, or the method for determining such date or
dates, on which the principal of such Debt Securities will be payable;
(5) the rate or rates, or the method by which such rate or rates shall
be determined, at which such Debt Securities will bear interest, if any,
the date or dates, or the method for determining such date or dates, from
which any interest will accrue, the dates on which any such interest will
be payable, the record dates for such interest payment dates, or the method
by which any such date shall be determined, and the basis upon which
interest shall be calculated if other than that of a 360-day year of twelve
30-day months;
(6) the place or places where the principal of (and premium, if any),
interest, if any, and additional amounts, if any, on such Debt Securities
will be payable, such Debt Securities may be surrendered for registration
of transfer or exchange and notices or demands to or upon the Operating
Partnership in respect of such Debt Securities and the Indenture may be
served;
(7) the period or periods within which, the price or prices at which,
the currency or currencies, currency unit or units or composite currency or
currencies in which, and the terms and conditions upon which such Debt
Securities may be redeemed, as a whole or in part, at the option of the
Operating Partnership, if the Operating Partnership is to have such an
option;
(8) the obligation, if any, of the Operating Partnership to redeem,
repay or purchase such Debt Securities pursuant to any sinking fund or
analogous provision or at the option of a holder thereof, and the period or
periods within which, the price or prices at which, the currency or
currencies, currency unit or units or composite currency or currencies in
which, and the terms and conditions upon which such Debt Securities will be
redeemed, repaid or purchased, as a whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any registered Debt Securities
("Registered Securities") shall be issuable and, if other than
denominations of $5,000 and any integral multiple thereof, the denomination
or denominations in which any bearer Debt Securities ("Bearer Securities")
shall be issuable;
(10) if other than the Trustee, the identity of each security
registrar and/or paying agent;
(11) if other than the principal amount thereof, the portion of the
principal amount of the Debt Securities that shall be payable upon
declaration of acceleration of the maturity thereof or the method by which
such portion shall be determined;
(12) if other than U.S. dollars, the currency or currencies in which
payment of the principal of (and premium, if any) or interest or additional
amounts, if any, on the Debt Securities shall be payable or in which the
Debt Securities shall be denominated;
(13) whether the amount of payments of principal of (and premium, if
any) or interest, if any, on the Debt Securities may be determined with
reference to an index, formula or other method (which index, formula or
method may be based, without limitation, on one or more currencies,
currency units, composite currencies, commodities, equity indices or other
indices), and the manner in which such amounts shall be determined;
(14) whether the principal of (and premium, if any) or interest or
additional amounts, if any, on the Debt Securities are to be payable, at
the election of the Operating Partnership or a holder (a "Holder") thereof,
in a currency or currencies, currency unit or units or composite currency
or currencies other than that in which such Debt Securities are denominated
or stated to be payable, the period or periods within which, and the terms
and conditions upon which, such election may be made, and the time and
manner of, and identity of the exchange rate agent with responsibility for,
determining the exchange rate between the currency or currencies, currency
unit or units or composite currency or currencies in which such Debt
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Securities are denominated or stated to be payable and the currency or
currencies, currency unit or units or composite currency or currencies in
which such Debt Securities are to be so payable;
(15) provisions, if any, granting special rights to the Holders of the
Debt Securities upon the occurrence of such events as may be specified;
(16) any deletions from, modifications of or additions to the events
of default (the "Events of Default") or covenants of the Operating
Partnership with respect to the Debt Securities, whether or not such Events
of Default or covenants are consistent with the Events of Default or
covenants set forth in the Indenture;
(17) whether the Debt Securities are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities
and the terms upon which Bearer Securities may be exchanged for Registered
Securities and vice versa (if permitted by applicable laws and
regulations), whether any Debt Securities are to be issuable initially in
temporary global form and whether any Debt Securities are to be issuable in
permanent global form with or without coupons and, if so, whether
beneficial owners of interests in any such permanent global Debt Security
may exchange such interests for Debt Securities of such series and of like
tenor of any authorized form and denomination and the circumstances under
which any such exchanges may occur, and, if Registered Securities are to be
issuable as a global Debt Security, the identity of the depositary for such
series;
(18) the date as of which any Bearer Securities and any temporary
global Debt Security representing Outstanding (as hereinafter defined) Debt
Securities shall be dated if other than the date of original issuance of
the first Debt Security of the series to be issued;
(19) the person to whom any interest on any Registered Security shall
be payable, if other than the person in whose name that Debt Security is
registered at the close of business on the applicable record date (the
"Regular Record Date") for such interest, the manner in which, or the
person to whom any interest on any Bearer Security shall be payable, if
otherwise than upon presentation and surrender of the coupons appertaining
thereto as they severally mature, and the extent to which, or the manner in
which, any interest payable on a temporary global Debt Security on an
interest payment date (an "Interest Payment Date") will be paid;
(20) if the defeasance and covenant defeasance provisions described
herein are to be inapplicable or any modification of such provisions;
(21) if the Debt Securities to be issuable in definitive form (whether
upon original issue or upon exchange of a temporary Debt Security) only
upon receipt of certain certificates or other documents or satisfaction of
other conditions, then the form and/or terms of such certificates,
documents or conditions;
(22) whether and under what circumstances the Operating Partnership
will pay additional amounts on the Debt Securities to any Holder who is not
a United States person (including any modification to the definition of
such term) in respect of any tax, assessment or governmental charge and, if
so, whether the Operating Partnership will have the option to redeem such
Debt Securities rather than pay such additional amounts (and the terms of
any such option);
(23) with respect to any Debt Securities that provide for optional
redemption or prepayment upon the occurrence of certain events (such as a
change of control of the Operating Partnership), (i) the possible effects
of such provisions on the market price of the Operating Partnership's or
the Company's securities or in deterring certain mergers, tender offers or
other takeover attempts, and the intention of the Operating Partnership to
comply with the requirements of Rule 14e-1 under the Exchange Act and any
other applicable securities laws in connection with such provisions; (ii)
whether the occurrence of the specified events may give rise to
cross-defaults on other indebtedness such that payment on such Debt
Securities may be effectively subordinated; and (iii) the existence of any
limitations on the Operating Partnership's financial or legal ability to
repurchase such Debt Securities upon the occurrence of such an
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event (including, if true, the lack of assurance that such a repurchase can
be effected) and the impact, if any, under the Indenture of such a failure,
including whether and under what circumstances such a failure may
constitute an Event of Default; and
(24) any other terms of such Debt Securities not inconsistent with the
terms of the Indenture.
The Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities"). If material or applicable, special U.S.
Federal income tax, accounting and other considerations applicable to Original
Issue Discount Securities will be described in the applicable Prospectus
Supplement.
Except as described under "Merger, Consolidation or Sale" or as may be set
forth in any Prospectus Supplement, the Indenture does not contain any other
provisions that would limit the ability of the Operating Partnership to incur
indebtedness or that would afford holders of the Debt Securities protection in
the event of (i) a highly leveraged or similar transaction involving the
Operating Partnership, the management of the Operating Partnership or the
Company, or any affiliate of any such party, (ii) a change of control, or (iii)
a reorganization, restructuring, merger or similar transaction involving the
Operating Partnership that may adversely affect the holders of the Debt
Securities. In addition, subject to the limitations set forth under "Merger,
Consolidation or Sale," the Operating Partnership may, in the future, enter into
certain transactions, such as the sale of all or substantially all of its assets
or the merger or consolidation of the Operating Partnership, that would increase
the amount of the Operating Partnership's indebtedness or substantially reduce
or eliminate the Operating Partnership's assets, which may have an adverse
effect on the Operating Partnership's ability to service its indebtedness,
including the Debt Securities. In addition, restrictions on ownership and
transfers of the Company's Common Stock and Preferred Stock are designed to
preserve its status as a REIT and, therefore, may act to prevent or hinder a
change of control. See "Description of Common Stock -- Restrictions on Transfer"
and "Description of Preferred Stock -- Restrictions on Ownership." Reference is
made to the applicable Prospectus Supplement for information with respect to any
deletions from, modifications of or additions to the events of default or
covenants that are described below, including any addition of a covenant or
other provision providing event risk or similar protection.
The applicable Prospectus Supplement will summarize the nature and scope of
any event risk provisions contained in any offered Debt Security, including the
types of events protected by such provisions and any limitations on the
Operating Partnership's ability to satisfy its obligations under such
provisions. The applicable Prospectus Supplement will also summarize
anti-takeover provisions in other securities of the Operating Partnership or the
General Partner, which could have a material effect on the offered Debt
Securities. Such summary will contain a detailed and quantifiable definition of
any "change in control" provision.
Reference is made to "-- Certain Covenants" below and to the description of
any additional covenants with respect to a series of Debt Securities in the
applicable Prospectus Supplement. Except as otherwise described in the
applicable Prospectus Supplement, compliance with such covenants generally may
not be waived with respect to a series of Debt Securities by the Board of
Directors of the Company as sole general partner of the Operating Partnership or
by the Trustee unless the Holders of at least a majority in principal amount of
all outstanding Debt Securities of such series consent to such waiver, except to
the extent that the defeasance and covenant defeasance provisions of the
Indenture described under "-- Discharge, Defeasance and Covenant Defeasance"
below apply to such series of Debt Securities. See "-- Modification of the
Indenture."
DENOMINATIONS, INTEREST, REGISTRATION AND TRANSFER
Unless otherwise described in the applicable Prospectus Supplement, the
Debt Securities of any series which are Registered Securities, other than
Registered Securities issued in global form (which may be of any denomination),
shall be issuable in denominations of $1,000 and any integral multiple thereof
and the Debt Securities which are Bearer Securities, other than Bearer
Securities issued in global form (which may be of any denomination), shall be
issuable in denominations of $5,000 (Section 302).
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Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and premium, if any) and interest on any series of Debt Securities
will be payable at the corporate trust office of the Trustee, provided that, at
the option of the Operating Partnership, payment of interest may be made by
check mailed to the address of the Person entitled thereto as it appears in the
applicable Security Register or by wire transfer of funds to such Person at an
account maintained within the United States (Sections 301, 307 and 1002).
Any interest not punctually paid or duly provided for on any Interest
Payment Date with respect to a Debt Security ("Defaulted Interest") will
forthwith cease to be payable to the Holder on the Regular Record Date and may
either be paid to the Person in whose name such Debt Security 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, notice
whereof shall be given to the Holder of such Debt Security not less than 10 days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner, all as more completely described in the Indenture.
Subject to certain limitations imposed upon Debt Securities issued in book
entry form, the Debt Securities of any series will be exchangeable for other
Debt Securities of the same series and of a like aggregate principal amount and
tenor of different authorized denominations upon surrender of such Debt
Securities at the corporate trust office of the Trustee. In addition, subject to
certain limitations imposed upon Debt Securities issued in book entry form, the
Debt Securities of any series may be surrendered for registration of transfer
thereof at the corporate trust office of the Trustee. Every Debt Security
surrendered for registration of transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer. No service charge will be made
for any registration of transfer or exchange of any Debt Securities, but the
Trustee or the Operating Partnership may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith
(Section 305). If the applicable Prospectus Supplement refers to any transfer
agent (in addition to the Trustee) initially designated by the Operating
Partnership with respect to any series of Debt Securities, the Operating
Partnership may at any time rescind the designation of any such transfer agent
or approve a change in the location through which any such transfer agent acts,
except that the Operating Partnership will be required to maintain a transfer
agent in each place of payment for such series. The Operating Partnership may at
any time designate additional transfer agents with respect to any series of Debt
Securities (Section 1002).
Neither the Operating Partnership nor the Trustee shall be required (i) to
issue, register the transfer of or exchange any Debt Security if such Debt
Security may be among those selected for redemption during a period beginning at
the opening of business 15 days before selection of the Debt Securities to be
redeemed and ending at the close of business on (A) if such Debt Securities are
issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption and (B) if such Debt Securities are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if such Debt Securities are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except, in the case of
any Registered Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a Registered Security of
that series and like tenor, provided that such Registered Security shall be
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Debt Security which has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such Debt
Security not to be so repaid (Section 305).
MERGER, CONSOLIDATION OR SALE
The Operating Partnership may consolidate with, or sell, lease or convey
all or substantially all of its assets to, or merge with or into, any other
entity, provided that (a) the Operating Partnership shall be the continuing
entity, or the successor entity (if other than the Operating Partnership) formed
by or resulting from any such consolidation or merger or which shall have
received the transfer of such assets shall expressly assume payment of the
principal of (and premium, if any) and interest on all the Debt Securities and
the due and punctual performance and observance of all of the covenants and
conditions contained in the Indenture; (b) immediately after giving effect to
such transaction and treating any indebtedness which becomes an
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obligation of the Operating Partnership or any subsidiary of the Operating
Partnership (a "Subsidiary") as a result thereof as having been incurred by the
Operating Partnership or such Subsidiary at the time of such transaction, no
Event of Default under the Indenture, and no event which, after notice or the
lapse of time, or both, would become such an Event of Default, shall have
occurred and be continuing; and (c) an officer's certificate and legal opinion
covering such conditions shall be delivered to the Trustee (Sections 801 and
803).
CERTAIN COVENANTS
Existence. Except as permitted under "Merger, Consolidation or Sale," the
Operating Partnership is required to do or cause to be done all things necessary
to preserve and keep in full force and effect its existence, rights and
franchises; provided, however, that the Operating Partnership shall not be
required to preserve any right or franchise if it determines that the
preservation thereof is no longer desirable in the conduct of its business and
that the loss thereof is not disadvantageous in any material respect to the
Holders of the Debt Securities (Section 1006).
Maintenance of Properties. The Operating Partnership is required to cause
all of its material properties used or useful in the conduct of its business or
the business of any Subsidiary to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and to cause
to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Operating Partnership may be
necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that the
Operating Partnership and its Subsidiaries shall not be prevented from selling
or otherwise disposing for value their respective properties in the ordinary
course of business (Section 1007).
Insurance. The Operating Partnership is required to, and is required to
cause each of its Subsidiaries to, keep all of its insurable properties insured
against loss or damage at least equal to their then full insurable value with
financially sound and reputable insurance companies (Section 1008).
Payment of Taxes and Other Claims. The Operating Partnership is required
to pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon its income, profits or property or
that of any Subsidiary, and (ii) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Operating Partnership or any Subsidiary; provided, however, that the Operating
Partnership shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings (Section
1009).
Provision of Financial Information. The Holders of Debt Securities will be
provided with copies of the annual reports and quarterly reports of the
Operating Partnership. Whether or not the Operating Partnership is subject to
Section 13 or 15(d) of the Exchange Act and for so long as any Debt Securities
are outstanding, the Operating Partnership will, to the extent permitted under
the Exchange Act, be required to file with the Commission the annual reports,
quarterly reports and other documents which the Operating Partnership would have
been required to file with the Commission pursuant to such Section 13 or 15(d)
(the "Financial Statements") if the Operating Partnership were so subject, such
documents to be filed with the Commission on or prior to the respective dates
(the "Required Filing Dates") by which the Operating Partnership would have been
required so to file such documents if the Operating Partnership were so subject.
The Operating Partnership will also in any event (x) within 15 days of each
Required Filing Date (i) transmit by mail to all Holders of Debt Securities, as
their names and addresses appear in the security register for the Debt
Securities (the "Security Register"), without cost to such Holders, copies of
the annual reports and quarterly reports which the Operating Partnership would
have been required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act if the Operating Partnership were subject to such Sections
and (ii) file with the Trustee copies of the annual reports, quarterly reports
and other documents which the Operating Partnership would have been required to
file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if
the Operating Partnership were subject to such Sections and (y) if filing such
documents by the Operating Partnership with the Commission is not permitted
under the Exchange Act, promptly upon written request
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and payment of the reasonable cost of duplication and delivery, supply copies of
such documents to any prospective Holder (Section 1010).
Additional Covenants. Any additional or different covenants of the
Operating Partnership with respect to any series of Debt Securities will be set
forth in the Prospectus Supplement relating thereto.
EVENTS OF DEFAULT, NOTICE AND WAIVER
The Indenture provides that the following events are "Events of Default"
with respect to any series of Debt Securities issued thereunder: (a) default for
30 days in the payment of any installment of interest on any Debt Security of
such series; (b) default in the payment of the principal of (or premium, if any,
on) any Debt Security of such series at its maturity; (c) default in making any
sinking fund payment as required for any Debt Security of such series; (d)
default in the performance of any other covenant of the Operating Partnership
contained in the Indenture (other than a covenant added to the Indenture solely
for the benefit of a series of Debt Securities issued thereunder other than such
series), such default having continued for 60 days after written notice as
provided in the Indenture; (e) default in the payment of an aggregate principal
amount exceeding $5,000,000 of any evidence of recourse indebtedness of the
Operating Partnership or any mortgage, indenture or other instrument under which
such indebtedness is issued or by which such indebtedness is secured, such
default having occurred after the expiration of any applicable grace period and
having resulted in the acceleration of the maturity of such indebtedness, but
only if such indebtedness is not discharged or such acceleration is not
rescinded or annulled; (f) certain events of bankruptcy, insolvency or
reorganization, or court appointment of a receiver, liquidator or trustee of the
Operating Partnership or any Significant Subsidiary or any of their respective
property; and (g) any other Event of Default provided with respect to a
particular series of Debt Securities. The term "Significant Subsidiary" means
each significant subsidiary (as defined in Regulation S-X promulgated under the
Securities Act) of the Operating Partnership.
If an Event of Default under the Indenture with respect to Debt Securities
of any series at the time Outstanding occurs and is continuing, then in every
such case the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of that series may declare the principal amount
(or, if the Debt Securities of that series are Original Issue Discount
Securities or Securities, the terms of which provide that the principal amount
thereof payable at maturity may be more or less than the principal face amount
thereof at original issuance ("Indexed Securities"), such portion of the
principal amount as may be specified in the terms thereof) of all of the Debt
Securities of that series to be due and payable immediately by written notice
thereof to the Operating Partnership (and to the Trustee if given by the
Holders). However, at any time after such a declaration of acceleration with
respect to Debt Securities of such series (or of all Debt Securities then
Outstanding under the Indenture, as the case may be) has been made, but before a
judgment or decree for payment of the money due has been obtained by the
Trustee, the Holders of not less than a majority in principal amount of
Outstanding Debt Securities of such series (or of all Debt Securities then
Outstanding under the Indenture, as the case may be) may rescind and annul such
declaration and its consequences if (a) the Operating Partnership shall have
deposited with the applicable Trustee all required payments of the principal of
(and premium, if any) and interest on the Debt Securities of such series (or of
all Debt Securities then Outstanding under the Indenture, as the case may be),
plus certain fees, expenses, disbursements and advances of the Trustee and (b)
all Events of Default, other than the nonpayment of accelerated principal of (or
specified portion thereof), or premium (if any) or interest on the Debt
Securities of such series (or of all Debt Securities then Outstanding under the
Indenture, as the case may be) have been cured or waived as provided in the
Indenture (Section 502). The Indenture also provides that the Holders of not
less than a majority in principal amount of the Outstanding Debt Securities of
any series (or of all Debt Securities then Outstanding under the Indenture, as
the case may be) may waive any past default with respect to such series and its
consequences, except a default (x) in the payment of the principal of (or
premium, if any) or interest on any Debt Security or such series or (y) in
respect of a covenant or provision contained in the Indenture that cannot be
modified or amended without the consent of the Holder of each Outstanding Debt
Security affected thereby (Section 513).
The Trustee will be required to give notice to the Holders of Debt
Securities within 90 days of a default under the Indenture unless such default
has been cured or waived; provided, however, that the Trustee may
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withhold notice to the Holders of any series of Debt Securities of any default
with respect to such series (except a default in the payment of the principal of
(or premium, if any) or interest on any Debt Security of such series or in the
payment of any sinking fund installment in respect of any Debt Security of such
series) if specified Responsible Officers of the Trustee consider such
withholding to be in the interest of such Holders (Section 601).
The Indenture provides that no Holders of Debt Securities of any series may
institute any proceedings, judicial or otherwise, with respect to the Indenture
or for any remedy thereunder, except in the case of failure of the Trustee, for
60 days, to act after it has received a written request to institute proceedings
in respect of an Event of Default from the Holders of not less than 25% in
principal amount of the Outstanding Debt Securities of such series, as well as
an offer of indemnity reasonably satisfactory to it (Section 507). This
provision will not prevent, however, any holder of Debt Securities from
instituting suit for the enforcement of payment of the principal of (and
premium, if any) and interest on such Debt Securities at the respective due
dates thereof (Section 508).
Subject to provisions in the Indenture relating to its duties in case of
default, the Trustee is under no obligation to exercise any of its rights or
powers under the Indenture at the request or direction of any Holders of any
series of Debt Securities then Outstanding under the Indenture, unless such
Holders shall have offered to the Trustee thereunder reasonable security or
indemnity (Section 602). The Holders of not less than a majority in principal
amount of the Outstanding Debt securities of any series (or of all Debt
Securities then Outstanding under the Indenture, as the case may be) shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or of exercising any trust or power
conferred upon the Trustee. However, the Trustee may refuse to follow any
direction which is in conflict with any law or the Indenture, which may involve
the Trustee in personal liability or which may be unduly prejudicial to the
holders of Debt Securities of such series not joining therein (Section 512).
Within 120 days after the close of each fiscal year, the Operating
Partnership must deliver to the Trustee a certificate, signed by one of several
specified officers of the Company, stating whether or not such officer has
knowledge of any default under the Indenture and, if so, specifying each such
default and the nature and status thereof.
MODIFICATION OF THE INDENTURE
Modifications and amendments of the Indenture will be permitted to be made
only with the consent of the Holders of not less than a majority in principal
amount of all Outstanding Debt Securities or series of Outstanding Debt
Securities which are affected by such modification or amendment; provided,
however, that no such modification or amendment may, without the consent of the
Holders of each such Debt Security affected thereby, (a) change the Stated
Maturity of the principal of, or premium (if any) or any installment of interest
on, any such Debt Security; (b) reduce the principal amount of, or the rate or
amount of interest on, or any premium payable on redemption of, any such Debt
Security, or reduce the amount of principal of an Original Issue Discount
Security that would be due and payable upon declaration of acceleration of the
maturity thereof or would be provable in bankruptcy, or adversely affect any
right of repayment of the holder of any such Debt Security; (c) change the place
of payment, or the coin or currency, for payment of principal of, premium, if
any, or interest on any such Debt Security; (d) impair the right to institute
suit for the enforcement of any payment on or with respect to any such Debt
Security; (e) reduce the above stated percentage of outstanding Debt Securities
of any series necessary to modify or amend the Indenture, to waive compliance
with certain provisions thereof or certain defaults and consequences thereunder
or to reduce the quorum or voting requirements set forth in the Indenture; or
(f) modify any of the foregoing provisions or any of the provisions relating to
the waiver of certain past defaults or certain covenants, except to increase the
required percentage to effect such action or to provide that certain other
provisions may not be modified or waived without the consent of the Holders of
such Debt Security (Section 902). A Debt Security shall be deemed outstanding
("Outstanding") if it has been authenticated and delivered under the Indenture
unless, among other things, such Debt Security has been cancelled or redeemed.
The Indenture provides that the Holders of not less than a majority in
principal amount of a series of Outstanding Debt Securities have the right to
waive compliance by the Operating Partnership with certain covenants relating to
such series of Debt Securities in the Indenture (Section 1014).
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Modifications and amendments of the Indenture will be permitted to be made
by the Operating Partnership and the Trustee without the consent of any Holder
of Debt Securities for any of the following purposes: (i) to evidence the
succession of another Person to the Operating Partnership as obligor under the
Indenture; (ii) to add to the covenants of the Operating Partnership for the
benefit of the Holders of all or any series of Debt Securities or to surrender
any right or power conferred upon the Operating Partnership in the Indenture;
(iii) to add Events of Default for the benefit of the Holders of all or any
series of Debt Securities; (iv) to add or change any provisions of the Indenture
to facilitate the issuance of, or to liberalize certain terms of, Debt
Securities in bearer form, or to permit or facilitate the issuance of Debt
Securities in uncertificated form, provided, that such action shall not
adversely affect the interests of the Holders of the Debt Securities of any
series in any material respect; (v) to change or eliminate any provisions of the
Indenture, provided that any such change or elimination shall become effective
only when there are no Debt Securities Outstanding of any series created prior
thereto which are entitled to the benefit of such provision; (vi) to secure the
Debt Securities; (vii) to establish the form or terms of Debt Securities of any
series; (viii) to provide for the acceptance of appointment by a successor
Trustee or facilitate the administration of the trusts under the Indenture by
more than one Trustee; (ix) to cure any ambiguity, defect or inconsistency in
the Indenture, provided that such action shall not adversely affect the
interests of Holders of Debt Securities of any series in any material respect;
or (x) to supplement any of the provisions of the Indenture to the extent
necessary to permit or facilitate defeasance and discharge of any series of such
Debt Securities, provided that such action shall not adversely affect the
interests of the Holders of the Debt Securities of any series in any material
respect (Section 901).
The Indenture provides that in determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities of a series have given
any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of Holders of Debt
Securities, (i) the principal amount of an Original Issue Discount Security that
shall be deemed to be Outstanding shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon
declaration of acceleration of the maturity thereof, (ii) the principal amount
of a Debt Security denominated in a foreign currency that shall be deemed
Outstanding shall be the U.S. dollar equivalent, determined on the issue date
for such Debt Security, of the principal amount (or, in the case of an Original
Issue Discount Security, the U.S. dollar equivalent on the issue date of such
Debt Security of the amount determined as provided in (i) above), (iii) the
principal amount of an Indexed Security that shall be deemed Outstanding shall
be the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Indexed Security pursuant to the
Indenture; and (iv) Debt Securities owned by the Operating Partnership or any
other obligor upon the Debt Securities or any affiliate of the Operating
Partnership or of such other obligor shall be disregarded.
The Indenture contains provisions for convening meetings of the Holders of
Debt Securities of a series (Section 1501). A meeting will be permitted to be
called at any time by the Trustee, and also, upon request, by the Operating
Partnership or the holders of at least 10% in principal amount of the
Outstanding Debt Securities of such series, in any such case upon notice given
as provided in the Indenture (Section 1502). Except for any consent that must be
given by the Holder of each Debt Security affected by certain modifications and
amendments of the Indenture, any resolution presented at a meeting or adjourned
meeting duly reconvened at which a quorum is present will be permitted to be
adopted by the affirmative vote of the Holders of a majority in principal amount
of the Outstanding Debt Securities of that series; provided, however, that,
except as referred to above, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action that may be
made, given or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Debt Securities of a
series may be adopted at a meeting or adjourned meeting duly reconvened at which
a quorum is present by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Debt Securities of that
series. Any resolution passed or decision taken at any meeting of Holders of
Debt Securities of any series duly held in accordance with the Indenture will be
binding on all Holders of Debt Securities of that series. The quorum at any
meeting called to adopt a resolution, and at any reconvened meeting, will be
Persons holding or representing a majority in principal amount of the
Outstanding Debt Securities of a series; provided, however, that if any action
is to be taken at such meeting with respect to a consent or waiver which
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may be given by the Holders of not less than a specified percentage in principal
amount of the Outstanding Debt Securities of a series, the Persons holding or
representing such specified percentage in principal amount of the Outstanding
Debt Securities of such series will constitute a quorum (Section 1504).
Notwithstanding the foregoing provisions, if any action is to be taken at a
meeting of Holders of Debt Securities of any series with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action that
the Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage in principal amount of all Outstanding Debt Securities
affected thereby, or of the Holders of such series and one or more additional
series: (i) there shall be no minimum quorum requirement for such meeting and
(ii) the principal amount of the Outstanding Debt Securities of such series that
vote in favor of such request, demand, authorization, direction, notice,
consent, waiver or other action shall be taken into account in determining
whether such request, demand, authorization, direction, notice, consent, waiver
or other action has been made, given or taken under the Indenture (Section
1504).
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Operating Partnership may discharge certain obligations to Holders of
any series of Debt Securities that have not already been delivered to the
Trustee for cancellation and that either have become due and payable or will
become due and payable within one year (or scheduled for redemption within one
year) by irrevocably depositing with the Trustee, in trust, funds in such
currency or currencies, currency unit or units or composite currency or
currencies in which such Debt Securities are payable in an amount sufficient to
pay the entire indebtedness on such Debt Securities in respect of principal (and
premium, if any) and interest to the date of such deposit (if such Debt
Securities have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be (Sections 1401 and 1404).
The Indenture provides that, if the provisions of Article Fourteen are made
applicable to the Debt Securities of or within any series pursuant to Section
301 of the Indenture, the Operating Partnership may elect either (a) to defease
and be discharged from any and all obligations with respect to such Debt
Securities (except for the obligation to pay additional amounts, if any, upon
the occurrence of certain events of tax, assessment or governmental charge with
respect to payments on such Debt Securities and the obligations to register the
transfer or exchange of such Debt Securities, to replace temporary or mutilated,
destroyed, lost or stolen Debt Securities, to maintain an office or agency in
respect of such Debt Securities and to hold moneys for payment in trust)
("defeasance") (Section 1402) or (b) to be released from its obligations with
respect to such Debt Securities under sections 1004 to 1011, inclusive, of the
Indenture (including the restrictions described under "Certain Covenants") and
its obligations with respect to any other covenant, and any omission to comply
with such obligations shall not constitute a default or an Event of Default with
respect to such Debt Securities ("covenant defeasance") (Section 1403), in
either case upon the irrevocable deposit by the Operating Partnership with the
Trustee, in trust, of an amount, in such currency or currencies, currency unit
or units or composite currency or currencies in which such Debt Securities are
payable at the stated maturity date specified thereon ("Stated Maturity"), or
Government Obligations (as defined below), or both, applicable to such Debt
Securities which through the scheduled payment of principal and interest in
accordance with their terms will provide money in an amount sufficient to pay
the principal of (and premium, if any) and interest on such Debt Securities, and
any mandatory sinking fund or analogous payments thereon, on the scheduled due
dates therefor.
Such a trust will only be permitted to be established if, among other
things, the Operating Partnership has delivered to the Trustee an Opinion of
Counsel (as specified in the Indenture) to the effect that the Holders of such
Debt Securities will not recognize income, gain or loss for U.S. Federal income
tax purposes as a result of such defeasance or covenant defeasance and will be
subject to U.S. Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance or covenant
defeasance had not occurred, and such Opinion of Counsel, in the case of
defeasance, must refer to and be based upon a ruling of the Internal Revenue
Service or a change in applicable United States Federal income tax law occurring
after the date of the Indenture (Section 1404).
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"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the government which issued the foreign
currency in which the Debt Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the foreign
currency in which the Debt Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
Unless otherwise provided in the applicable Prospectus Supplement, if after
the Operating Partnership has deposited funds and/or Government Obligations to
effect defeasance or covenant defeasance with respect to Debt Securities of any
series; (a) the Holder of a Debt Security of such series is entitled to, and
does, elect pursuant to the Indenture or the terms of such Debt Security to
receive payment in a currency, currency unit or composite currency other than
that in which such deposit has been made in respect of such Debt Security, or
(b) a Conversion Event (as defined below) occurs in respect of the currency,
currency unit or composite currency in which such deposit has been made, the
indebtedness represented by such Debt Security shall be deemed to have been, and
will be, fully discharged and satisfied through the payment of the principal of
(and premium, if any) and interest on such Debt Security as they become due out
of the proceeds yielded by converting the amount so deposited in respect of such
Debt Security into the currency, currency unit or composite currency in which
such Debt Security becomes payable as a result of such election or such
Conversion Event based on the applicable market exchange rate. "Conversion
Event" means the cessation of use of (i) a currency, currency unit or composite
currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Community or (iii) any currency
unit or composite currency other than the ECU for the purposes for which it was
established.
Unless otherwise provided in the applicable Prospectus Supplement, all
payments of principal of (and premium, if any) and interest on any Debt Security
that is payable in a foreign currency that ceases to be used by its government
of issuance shall be made in U.S. dollars.
In the event the Operating Partnership effects covenant defeasance with
respect to any Debt Securities and such Debt Securities are declared due and
payable because of the occurrence of any Event of Default other than the Event
of Default described in clause (d) under "Events of Default, Notice and Waiver"
with respect to Sections 1004 to 1011, inclusive, of the Indenture (which
sections would no longer be applicable to such Debt Securities) or described in
clause (g) under "Events of Default, Notice and Waiver" with respect to any
other covenant as to which there has been covenant defeasance, the amount in
such currency, currency unit or composite currency in which such Debt securities
are payable, and Government Obligations on deposit with the Trustee, will be
sufficient to pay amounts due on such Debt Securities at the time of their
Stated Maturity but may not be sufficient to pay amounts due on such Debt
Securities at the time of the acceleration resulting from such event of Default.
However, the Operating Partnership would remain liable to make payment of such
amounts due at the time of acceleration.
The applicable Prospectus Supplement may further describe the provisions,
if any, permitting such defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the Debt
Securities of or within a particular series.
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NO CONVERSION RIGHTS
The Debt Securities will not be convertible into or exchangeable for any
capital stock of the Company or equity interest in the Operating Partnership.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities (the "Global Securities") that will be
deposited with, or on behalf of, a depositary (the "Depositary") identified in
the applicable Prospectus Supplement relating to such series. Global Securities
may be issued in either registered or bearer form and in either temporary or
permanent form. The specific terms of the depositary arrangement with respect to
a series of Debt Securities will be described in the applicable Prospectus
Supplement relating to such series.
DESCRIPTION OF COMMON STOCK
GENERAL
The authorized common stock of the Company includes 100,000,000 shares of
Common Stock $.01 par value per share. Each outstanding share of Common Stock
entitles the holder to one vote on all matters presented to shareholders for a
vote. Holders of Common Stock have no preemptive rights. At December 31, 1995,
there were 21,577,636 shares of Common Stock outstanding, 5,139,243 shares
reserved for issuance upon exchange of outstanding Units and 617,423 shares
reserved for issuance upon exercise of outstanding stock options.
Shares of Common Stock currently outstanding are listed for trading on the
New York Stock Exchange (the "NYSE") under the symbol "PPS." The Company will
apply to the NYSE to list the additional shares of Common Stock to be sold
pursuant to any Prospectus Supplement, and the Company anticipates that such
shares will be so listed.
All shares of Common Stock issued will be duly authorized, fully paid, and
nonassessable. Distributions may be paid to the holders of Common Stock if and
when declared by the Board of Directors of the Company out of funds legally
available therefor.
Under Georgia law, shareholders are generally not liable for the Company's
debts or obligations. If the Company is liquidated, subject to the right of any
holders of preferred stock, if any, to receive preferential distributions, each
outstanding share of Common Stock will be entitled to participate pro rata in
the assets remaining after payment of, or adequate provision for, all known
debts and liabilities of the Company.
PROVISIONS OF COMPANY'S ARTICLES OF INCORPORATION AND BYLAWS
The Articles of Incorporation of the Company provide for the Board of
Directors to be divided into three classes of directors, each class to consist
as nearly as possible of one-third of the directors. At each annual meeting of
shareholders, the class of directors to be elected at such meeting will be
elected for a three-year term and the directors in the other two classes will
continue in office. The overall effect of the provisions in the Articles of
Incorporation with respect to the classified board may be to render more
difficult a change of control of the Company or removal of incumbent management.
Holders of Common Stock have no right to cumulative voting for the election of
directors. Consequently, at each annual meeting of shareholders, the holders of
a plurality of the shares of Common Stock are able to elect all of the
successors of the class of directors whose term expires at that meeting.
Directors may be removed only for cause and only with the affirmative vote of
the holders of a majority of the shares of Common Stock entitled to vote in the
election of directors.
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OTHER MATTERS
The transfer agent and registrar for the Common Stock is Wachovia Bank of
North Carolina, N.A., Winston-Salem, North Carolina.
The Company may not engage in any merger, consolidation or other
combination with or into another person or sale of all or substantially all of
its assets unless such transaction includes the merger of the Operating
Partnership or sale of substantially all of the assets of the Operating
Partnership, which sale or merger must be approved by the holders of a majority
of the Units. If the Company were ever to hold less than a majority of the
Units, this voting requirement might limit the possibility for acquisition or
change in the control of the Company.
RESTRICTIONS ON TRANSFER
Ownership Limits. The Company's Articles of Incorporation contain certain
restrictions on the number of shares of Common Stock that a single shareholder
may own. For the Company to qualify as a REIT under the Code, no more than 50%
in value of its outstanding shares of Common Stock may be owned, actually and
constructively under the applicable attribution provisions of the Code, by five
or fewer individuals (as defined in the Code to include certain entities) during
the last half of a taxable year (other than the first year) or during a
proportionate part of a shorter taxable year. The Common Stock must also be
beneficially owned by 100 or more persons during at least 335 days of a taxable
year (other than the first year) or during a proportionate part of a shorter
taxable year. Because the Company has elected to be treated as a REIT, the
Articles of Incorporation of the Company contain restrictions on the acquisition
of Common Stock intended to ensure compliance with these requirements.
Subject to certain exceptions specified in the Articles of Incorporation,
no person other than Messrs. Williams and Glover may own, or be deemed to own by
virtue of the applicable attribution provisions of the Code, more than 6% (the
"Ownership Limit") of the outstanding shares of Common Stock. Messrs. Williams
and Glover are subject to a separate limitation (referred to as the "Excluded
Holder Limit") pursuant to which they are prohibited from owning (actually and
constructively under the applicable attribution provisions of the Code) more
than 31%, in the aggregate, of the outstanding shares of Common Stock. In
addition, Messrs. Williams and Glover are prohibited from acquiring any shares
of Common Stock if such acquisition would cause five individuals to own
(actually and constructively under the applicable attribution provisions of the
Code) in the aggregate more than 50% in value of the outstanding shares of
Common Stock.
If any shareholder purports to transfer shares to a person and either the
transfer would result in the Company failing to qualify as a REIT, or the
shareholder knows that such transfer would cause the transferee to hold more
than the applicable Ownership Limit or Excluded Holder Limit, the purported
transfer will be null and void as to that number of shares the transfer of which
would cause a violation of the applicable limit, and the shareholder will be
deemed not to have transferred such excess shares. In addition, if any person
holds shares of Common Stock in excess of the applicable Ownership Limit or
Excluded Holder Limit, such person will be deemed to hold the shares that cause
the applicable limit to be exceeded in trust for the Company, and will not
receive dividends or distributions with respect to such shares and will not be
entitled to vote such shares. The person will be required to sell such shares to
the Company for the lesser of the amount paid for the shares and the average of
the last reported sales prices for the ten trading days immediately preceding
the redemption or to sell such shares at the direction of the Company, in which
case the Company will be reimbursed for its expenses in connection with the sale
plus any remaining amount of such proceeds that exceeds the amount such person
paid for the shares and such person will be entitled to receive only the balance
of the proceeds. If the Company repurchases such shares, it may elect to pay for
the shares with Units.
All certificates representing shares of Common Stock will bear a legend
referring to the restrictions described above.
Every owner of more than 5% (or such lower percentage as may be required by
the Code or regulations thereunder) of the issued and outstanding shares of
Common Stock must file a written notice with the
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Company containing the information specified in the Articles of Incorporation no
later than January 30 of each year. In addition, each shareholder shall upon
demand be required to disclose to the Company in writing such information as the
Company may request in good faith in order to determine the Company's status as
a REIT.
The foregoing ownership limitations may have the effect of precluding
acquisition of control of the Company without the consent of the Board of
Directors.
DESCRIPTION OF PREFERRED STOCK
GENERAL
The Company is authorized to issue 20,000,000 share of preferred stock,
$.01 par value per share, of which no Preferred Stock was outstanding at
December 31, 1995.
The following description of the Preferred Stock sets forth certain general
terms and provisions of the Preferred Stock to which any Prospectus Supplement
may relate. The statements below describing the Preferred Stock are in all
respects subject to and qualified in their entirety by reference to the
applicable provisions of the Company's Articles of Incorporation (the "Articles
of Incorporation") and Bylaws and any applicable amendment to the Articles of
Incorporation designating terms of a series of Preferred Stock (a "Designating
Amendment").
TERMS
Subject to the limitations prescribed by the Articles of Incorporation, the
Board of Directors is authorized to fix the number of shares constituting each
series of Preferred Stock and the designations and powers, preferences and
relative, participating, optional or other special rights and qualifications,
limitations or restrictions thereof, including such provisions as may be desired
concerning voting, redemption, dividends, dissolution or the distribution of
assets, conversion or exchange, and such other subjects or matters as may be
fixed by resolution of the Board of Directors. The Preferred Stock will, when
issued, be fully paid and nonassessable by the Company (except as described
under "-- Shareholder Liability" below) and will have no preemptive rights.
Reference is made to the Prospectus Supplement relating to the Preferred
Stock offered thereby for specific terms thereof, including:
(1) The title and stated value of such Preferred Stock;
(2) The number of shares of such Preferred Stock offered, the
liquidation preference per share and the offering price of such Preferred
Stock;
(3) The dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculation thereof applicable to such Preferred Stock;
(4) The date from which dividends on such Preferred Stock shall
accumulate, if applicable;
(5) The procedures for any auction or remarketing, if any, for such
Preferred Stock;
(6) The provision for a sinking fund, if any, for such Preferred
Stock;
(7) The provision for redemption, if applicable, of such Preferred
Stock;
(8) Any listing of such Preferred Stock on any securities exchange;
(9) The terms and conditions, if applicable, upon which such Preferred
Stock will be convertible into Common Stock of the Company, including the
conversion price (or manner of calculation thereof);
(10) Whether interests in such Preferred Stock will be represented by
Depositary Shares;
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(11) Any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Stock;
(12) A discussion of U.S. Federal income tax considerations applicable
to such Preferred Stock;
(13) The relative ranking of preferences of such Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding up of
the affairs of the Company;
(14) Any limitations on issuance of any series of Preferred Stock
ranking senior to or on a parity with such series of Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding up of
the affairs of the Company; and
(15) Any limitations on direct or beneficial ownership and
restrictions on transfer, in each case an may be appropriate to preserve
the status of the Company as a REIT.
The applicable Prospectus Supplement will summarize the nature and scope of
any event risk provisions contained in any series of Preferred Stock, including
the types of events protected by such provisions and any limitations on the
Company's ability to satisfy its obligations under such provisions. The
applicable Prospectus Supplement will also summarize anti-takeover provisions in
other securities of the Operating Partnership or the General Partnership, which
could have a material effect on any series of Preferred Stock. Such summary will
contain a detailed and quantifiable definition of any "change in control"
provision.
RANK
Unless otherwise specified in the Prospectus Supplement, the Preferred
Stock will, with respect to dividend rights and rights upon liquidation,
dissolution or winding up of the Company, rank (i) senior to all classes or
series of Common Stock of the Company, and to all equity securities ranking
junior to such Preferred Stock; (ii) on a parity with all equity securities
issued by the Company the terms of which specifically provide that such equity
securities rank on a parity with the Preferred Stock; and (iii) junior to all
equity securities issued by the Company the terms of which specifically provide
that such equity securities rank senior to the Preferred Stock. The term "equity
securities" does not include convertible debt securities.
DIVIDENDS
Holders of the Preferred Stock of each series will be entitled to receive,
when, as and if declared by the Board of Directors of the Company, out of assets
of the Company legally available for payment, cash dividends at such rates and
on such dates as will be set forth in the applicable Prospectus Supplement. Each
such dividend shall be payable to holders of record as they appear on the share
transfer books of the Company on such record dates as shall be fixed by the
Board of Directors of the Company.
Dividends on any series of the Preferred Stock may be cumulative or
non-cumulative, as provided in the applicable Prospectus Supplement. Dividends,
if cumulative, will be cumulative from and after the date set forth in the
applicable Prospectus Supplement. If the Board of Directors of the Company fails
to declare a dividend payable on a dividend payment date on any series of the
Preferred Stock for which dividends are non-cumulative, then the holders of such
series of the Preferred Stock will have no right to receive a dividend in
respect of the dividend period ending on such dividend payment date, and the
Company will have no obligation to pay the dividend accrued for such period,
whether or not dividends on such series are declared payable on any future
dividend payment date.
If Preferred Stock of any series is outstanding, no dividends will be
declared or paid or set apart for payment on any capital stock of the Company of
any other series ranking, as to dividends, on a parity with or junior to the
Preferred Stock of such series for any period unless (i) if such series of
Preferred Stock has a cumulative dividend, full cumulative dividends have been
or contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment on the Preferred Stock of such
series for all past dividend periods and the then current dividend period or
(ii) if such series of Preferred Stock does not have a cumulative dividend, full
dividends for the then current dividend period have been or
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contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment on the Preferred Stock of such
series. When dividends are not paid in full (or a sum sufficient for such full
payment is not so set apart) upon Preferred Stock of any series and the shares
of any other series of Preferred Stock ranking on a parity as to dividends with
the Preferred Stock of such series, all dividends declared upon Preferred Stock
of such series and any other series of Preferred Stock ranking on a parity as to
dividends with such Preferred Stock shall be declared pro rata so that the
amount of dividends declared per share of Preferred Stock of such series and
such other series of Preferred Stock shall in all cases bear to each other the
same ratio that accrued dividends per share on the Preferred Stock of such
series (which shall not include any accumulation in respect of unpaid dividends
for prior dividend periods if such Preferred Stock does not have a cumulative
dividend) and such other series of Preferred Stock bear to each other. No
interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on Preferred Stock of such series which may be
in arrears.
Except as provided in the immediately preceding paragraph, unless (i) if
such series of Preferred Stock has a cumulative dividend, full cumulative
dividends on the Preferred Stock of such series have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for payment for all past dividend periods and the then current
dividend period, and (ii) if such series of Preferred Stock does not have a
cumulative dividend, full dividends on the Preferred Stock of such series have
been or contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for payment for the then current dividend
period, no dividends (other than in shares of Common Stock or other capital
shares ranking junior to the Preferred Stock of such series as to dividends and
upon liquidation) shall be declared or paid or set aside for payment or other
distribution shall be declared or made upon the Common Stock, or any other
capital shares of the Company ranking junior to or on a parity with the
Preferred Stock of such series as to dividends or upon liquidation, nor shall
any shares of Common Stock, or any other capital shares of the Company ranking
junior to or on a parity with the Preferred Stock of such series as to dividends
or upon liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking fund for
the redemption of any such shares) by the Company (except by conversion into or
exchange for other capital shares of the Company ranking junior to the Preferred
Stock of such series as to dividends and upon liquidation).
REDEMPTION
If so provided in the applicable Prospectus Supplement, the Preferred Stock
will be subject to mandatory redemption or redemption at the option of the
Company, as a whole or in part, in each case upon the terms, at the times and at
the redemption prices set forth in such Prospectus Supplement.
The Prospectus Supplement relating to a series of Preferred Stock that is
subject to mandatory redemption will specify the number of shares of such
Preferred Stock that shall be redeemed by the Company in each year commencing
after a date to be specified, at a redemption price per share to be specified,
together with an amount equal to all accrued and unpaid dividends thereon (which
shall not, if such Preferred Stock does not have a cumulative dividend, include
any accumulation in respect of unpaid dividends for prior dividend periods) to
the date of redemption. The redemption price may be payable in cash or other
property, as specified in the applicable Prospectus Supplement. If the
redemption price for Preferred Stock of any series is payable only from the net
proceeds of the issuance of capital shares of the Company, the terms of such
Preferred Stock may provide that, if no such capital shares shall have been
issued or to the extent the net proceeds from any issuance are insufficient to
pay in full the aggregate redemption price then due, such Preferred Stock shall
automatically and mandatorily be converted into the applicable capital shares of
the Company pursuant to conversion provisions specified in the applicable
Prospectus Supplement.
Notwithstanding the foregoing, unless (i) if such series of Preferred Stock
has a cumulative dividend, full cumulative dividends on all shares of any series
of Preferred Stock shall have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for payment for
all past dividend periods and the then current dividend period, and (ii) if such
series of Preferred Stock does not have a cumulative dividend, full dividends of
the Preferred Stock of any series have been or contemporaneously are declared
and paid or declared and a sum sufficient for the payment thereof set apart for
payment for the then
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current dividend period, no shares of any series of Preferred Stock shall be
redeemed unless all outstanding Preferred Stock of such series is simultaneously
redeemed; provided, however, that the foregoing shall not prevent the purchase
or acquisition of Preferred Stock of such series to preserve the REIT status of
the Company or pursuant to a purchase or exchange offer made on the same terms
to holders of all outstanding Preferred Stock of such series. In addition,
unless (i) if such series of Preferred Stock has a cumulative dividend, full
cumulative dividends on all outstanding shares of any series of Preferred Stock
have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for all past dividends
periods and the then current dividend period, and (ii) if such series of
Preferred Stock does not have a cumulative dividend, full dividends on the
Preferred Stock of any series have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart for
payment for the then current dividend period, the Company shall not purchase or
otherwise acquire directly or indirectly any shares of Preferred Stock of such
series (except by conversion into or exchange for capital shares of the Company
ranking junior to the Preferred Stock of such series as to dividends and upon
liquidation); provided, however, that the foregoing shall not prevent the
purchase or acquisition of Preferred Stock of such series to preserve the REIT
status of the Company or pursuant to a purchase or exchange offer made on the
same terms to holders of all outstanding Preferred Stock of such series.
If fewer than all of the outstanding shares of Preferred Stock of any
series are to be redeemed, the number of shares to be redeemed will be
determined by the Company and such shares may be redeemed pro rata from the
holders of record of such shares in proportion to the number of such shares held
or for which redemption is requested by such holder (with adjustments to avoid
redemption of fractional shares) or by lot in a manner determined by the
Company.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of record of Preferred Stock of
any series to be redeemed at the address shown on the share transfer books of
the Company. Each notice shall state: (i) the redemption date; (ii) the number
of shares and series of the Preferred Stock to be redeemed; (iii) the redemption
price; (iv) the place or places where certificates for such Preferred Stock are
to be surrendered for payment of the redemption price; (v) that dividends on the
shares to be redeemed will cease to accrue on such redemption date; and (vi) the
date upon which the holder's conversion rights, if any, as to such shares shall
terminate. If fewer than all the shares of Preferred Stock of any series are to
be redeemed, the notice mailed to each such holder thereof shall also specify
the number of shares of Preferred Stock to be redeemed from each such holder. If
notice of redemption of any Preferred Stock has been given and if the funds
necessary for such redemption have been set aside by the Company in trust for
the benefit of the holders of any Preferred Stock so called for redemption, then
from and after the redemption date dividends will cease to accrue on such
Preferred Stock, and all rights of the holders of such shares will terminate,
except the right to receive the redemption price.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Company, then, before any distribution or payment shall be
made to the holders of any Common Stock or any other class or series of capital
shares of the Company ranking junior to the Preferred Stock in the distribution
of assets upon any liquidation, dissolution or winding up of the Company, the
holders of each series of Preferred Stock shall be entitled to receive out of
assets of the Company legally available for distribution to shareholders
liquidating distributions in the amount of the liquidation preference per share
(set forth in the applicable Prospectus Supplement), plus an amount equal to all
dividends accrued and unpaid thereon (which shall not include any accumulation
in respect of unpaid dividends for prior dividend periods if such Preferred
Stock does not have a cumulative dividend). After payment of the full amount of
the liquidating distributions to which they are entitled, the holders of
Preferred Stock will have no right or claim to any of the remaining assets of
the Company. In the event that, upon any such voluntary or involuntary
liquidation, dissolution or winding up, the available assets of the Company are
insufficient to pay the amount of the liquidating distributions on all
outstanding Preferred Stock and the corresponding amounts payable on all shares
of other classes or series of capital shares of the Company ranking on a parity
with the Preferred Stock in the distribution of assets, then the holders of the
Preferred Stock and all other such classes or series of capital
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shares shall share ratably in any such distribution of assets in proportion to
the full liquidating distributions to which they would otherwise be respectively
entitled.
If liquidating distributions shall have been made in full to all holders of
Preferred Stock, the remaining assets of the Company shall be distributed among
the holders of any other classes or series of capital shares ranking junior to
the Preferred Stock upon liquidation, dissolution or winding up, according to
their respective rights and preferences and in each case according to their
respective number of shares. For such purposes, the consolidation or merger of
the Company with or into any other corporation, trust or entity, or the sale,
lease or conveyance of all or substantially all of the property or business of
the Company, shall not be deemed to constitute a liquidation, dissolution or
winding up of the Company.
VOTING RIGHTS
Holders of the Preferred Stock will not have any voting rights, except as
set forth below or as otherwise from time to time required by law or as
indicated in the applicable Prospectus Supplement.
Whenever dividends on any shares of Preferred Stock shall be in arrears for
six or more consecutive quarterly periods, the holders of such shares of
Preferred Stock (voting separately as a class with all other series of Preferred
Stock upon which like voting rights have been conferred and are exercisable)
will be entitled to vote for the election of two additional directors of the
Company at a special meeting called by the holders of record of at least ten
percent (10%) of any series of Preferred Stock so in arrears (unless such
request is received less than 90 days before the date fixed for the next annual
or special meeting of the shareholders) or at the next annual meeting of
shareholders, and at each subsequent annual meeting until (i) if such series of
Preferred Stock has a cumulative dividend, all dividends accumulated on such
shares of Preferred Stock for the past dividend periods and the then current
dividend period shall have been fully paid or declared and a sum sufficient for
the payment thereof set aside for payment or (ii) if such series of Preferred
Stock does not have a cumulative dividend, four consecutive quarterly dividends
shall have been fully paid or declared and a sum sufficient for the payment
thereof set aside for payment. In such case, the entire Board of Directors of
the Company will be increased by two directors.
Unless provided otherwise for any series of Preferred Stock, so long as any
shares of Preferred Stock remain outstanding, the Company will not, without the
affirmative vote or consent of the holders of at least two-thirds of the shares
of each series of Preferred Stock outstanding at the time, given in person or by
proxy, either in writing or at a meeting (such series voting separately as a
class), (i) authorize or create, or increase the authorized or issued amount of,
any class or series of capital stock ranking prior to such series of Preferred
Stock with respect to payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up or reclassify any authorized capital
stock of the Company into such shares, or create, authorize or issue any
obligation or security convertible into or evidencing the right to purchase any
such shares; or (ii) amend, alter or repeal the provisions of the Company's
Articles of Incorporation or the Designating Amendment for such series of
Preferred Stock, whether by merger, consolidation or otherwise (an "Event"), so
as to materially and adversely affect any right, preference, privilege or voting
power of such series of Preferred Stock or the holder thereof; provided,
however, to the occurrence of any of the Events set forth in (ii) above, so long
as the Preferred Stock remains outstanding with the terms thereof materially
unchanged, taking into account that upon the occurrence of an Event, the Company
may not be the surviving entity, the occurrence of any such Event shall not be
deemed to materially and adversely affect such rights, preferences, privileges
or voting power of holders of Preferred Stock and provided further that (x) any
increase in the amount of the authorized Preferred Stock or the creation or
issuance of any other series of Preferred Stock, or (y) any increase in the
amount of authorized shares of such series or any other series of Preferred
Stock, in each case ranking on a parity with or junior to the Preferred Stock of
such series with respect to payment of dividends or the distribution of assets
upon liquidation, dissolution or winding up, shall not be deemed to materially
and adversely affect such rights, preferences, privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected all outstanding shares of such series of Preferred Stock
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shall have been redeemed or called for redemption and sufficient funds shall
have been deposited in trust to effect such redemption.
Under Georgia law, notwithstanding anything to the contrary set forth
above, holders of each series of Preferred Stock will be entitled to vote as a
class upon any proposed amendment to the Articles of Incorporation, whether or
not entitled to vote thereon by the Articles of Incorporation, if the amendment
would (i) increase or decrease the aggregate number of authorized shares of such
series; (ii) effect an exchange or reclassification of all or part of the shares
of the series into shares of another series; (iii) effect an exchange or
reclassification, or create the right of exchange, of all or part of the shares
of another class or series into shares of the series; (iv) change the
designation, rights, preferences or limitations of all or a part of the shares
of the series; (v) change the shares of all or part of the series into a
different number of shares of the same series; (vi) create a new series having
rights or preferences with respect to distributions or dissolution that are
prior, superior or substantially equal to the shares of the series; (vii)
increase the rights, preferences or number of authorized shares of any class or
series that, after giving effect to the amendment, have rights or preferences
with respect to distributions or to dissolution that are prior, superior or
substantially equal to the shares of the series; (viii) limit or deny an
existing preemptive right of all or part of the shares of the series; or (ix)
cancel or otherwise affect rights to distributions or dividends that have
accumulated but have not yet been declared on all or part of the shares of the
series.
CONVERSION RIGHTS
The terms and conditions, if any, upon which any series of Preferred Stock
is convertible into shares of Common Stock will be set forth in the applicable
Prospectus Supplement relating thereto. Such terms will include the number of
shares of Common Stock into which the shares of Preferred Stock are convertible,
the conversion price (or manner of calculation thereof), the conversion period,
provisions as to whether conversions will be at the option of the holders of the
Preferred Stock or the Company, the events requiring an adjustment of the
conversion price and provisions affecting conversion in the event of the
redemption of such series of Preferred Stock.
SHAREHOLDER LIABILITY
As discussed below under "Description of Common Stock -- General,"
applicable Georgia law provides that no shareholder, including holders of
Preferred Stock, shall be personally liable for the acts and obligations of the
Company and that the funds and property of the Company shall be the only
recourse for such acts or obligations.
RESTRICTIONS ON OWNERSHIP
As discussed below under "Description of Common Stock -- Restrictions on
Transfer," for the Company to qualify as a REIT under the Code, not more than
50% in value of its outstanding capital shares may be owned, directly or
indirectly, by five or fewer individuals (as defined in the Code to include
certain entities) during the last half of a taxable year. To assist the Company
in meeting this requirement, the Company may take certain actions to limit the
beneficial ownership, directly or indirectly, by a single person of the
Company's outstanding equity securities, including any Preferred Stock of the
Company. Therefore, the Designating Amendment for each series of Preferred Sock
may contain provisions restricting the ownership and transfer of the Preferred
Stock. The applicable Prospectus Supplement will specify any additional
ownership limitation relating to a series of Preferred Stock.
REGISTRAR AND TRANSFER AGENT
The Registrar and Transfer Agent for the Preferred Stock will be set forth
in the applicable Prospectus Supplement.
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DESCRIPTION OF DEPOSITARY SHARES
GENERAL
The Company may issue receipts ("Depositary Receipts") for Depositary
Shares, each of which will represent a fractional interest of a share of a
particular series of Preferred Stock, as specified in the applicable Prospectus
Supplement. Shares of Preferred Stock of each series represented by Depositary
Shares will be deposited under a separate deposit agreement (each, a "Deposit
Agreement") among the Company, the depositary named therein (a "Preferred Stock
Depositary") and the holders from time to time of the Depositary Receipts.
Subject to the terms of the applicable Deposit Agreement, each owner of a
Depositary Receipt will be entitled, in proportion to the fractional interest of
a share of a particular series of Preferred Stock represented by the Depositary
Shares evidenced by such Depositary Receipt, to all the rights and preferences
of the Preferred Stock represented by such Depositary Shares (including
dividend, voting, conversion, redemption and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the applicable Deposit Agreement. Immediately following the issuance
and delivery of the Preferred Stock by the Company to a Preferred Stock
Depositary, the Company will cause such Preferred Stock Depositary to issue, on
behalf of the Company, the Depositary Receipts. Copies of the applicable form of
Deposit Agreement and Depositary Receipt may be obtained from the Company upon
request, and the statements made hereunder relating to Deposit Agreements and
the Depositary Receipts to be issued thereunder are summaries of certain
anticipated provisions thereof and do not purport to be complete and are subject
to, and qualified in their entirety by reference to, all of the provisions of
the applicable Deposit Agreement and related Depositary Receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
A Preferred Stock Depositary will be required to distribute all cash
dividends or other cash distributions received in respect of the applicable
Preferred Stock to the record holders of Depositary Receipts evidencing the
related Depositary Shares in proportion to the number of such Depositary
Receipts owned by such holders, subject to certain obligations of holders to
file proofs, certificates and other information and to pay certain charges and
expenses to such Preferred Stock Depositary.
In the event of a distribution other than in cash, a Preferred Stock
Depositary will be required to distribute property received by it to the record
holders of Depositary Receipts entitled thereto, subject to certain obligations
of holders to file proofs, certificates and other information and to pay certain
charges and expenses to such Preferred Stock Depositary, unless such Preferred
Stock Depositary determines that it is not feasible to make such distribution,
in which case such Preferred Stock Depositary may, with the approval of the
Company, sell such property and distribute the net proceeds from such sale to
such holders.
No distribution will be made in respect of any Depositary Share to the
extent that it represents any Preferred Stock which has been converted or
exchanged.
WITHDRAWAL OF STOCK
Upon surrender of the Depositary Receipts at the corporate trust office of
the applicable Preferred Stock Depositary (unless the related Depositary Shares
have previously been called for redemption or converted), the holders thereof
will be entitled to delivery at such office, to or upon each such holder's
order, of the number of whole or fractional shares of the applicable Preferred
Stock and any money or other property represented by the Depositary Shares
evidenced by such Depositary Receipts. Holders of Depositary Receipts will be
entitled to receive whole or fractional shares of the related Preferred Stock on
the basis of the proportion of Preferred Stock represented by each Depositary
Share as specified in the applicable Prospectus Supplement, but holders of such
shares of Preferred Stock will not thereafter be entitled to receive Depositary
Shares therefor. If the Depositary Receipts delivered by the holder evidence a
number of Depositary Shares in excess of the number of Depositary Shares
representing the number of shares of Preferred Stock to be
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withdrawn, the applicable Preferred Stock Depositary will be required to deliver
to such holder at the same time a new Depositary Receipt evidencing such excess
number of Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
Whenever the Company redeems shares of Preferred Stock held by a Preferred
Stock Depositary, such Preferred Stock Depositary will be required to redeem as
of the same redemption date the number of Depositary Shares representing shares
of the Preferred Stock so redeemed, provided the Company shall have paid in full
to such Preferred Stock Depositary the redemption price of the Preferred Stock
to be redeemed plus an amount equal to any accrued and unpaid dividends thereon
to the date fixed for redemption. The redemption price per Depositary Share will
be equal to the redemption price and any other amounts per share payable with
respect to the Preferred Stock. If fewer than all the Depositary Shares are to
be redeemed, the Depositary Shares to be redeemed will be selected pro rata (as
nearly as may be practicable without creating fractional Depositary Shares) or
by any other equitable method determined by the Company that preserves the REIT
status of the Company.
From and after the date fixed for redemption, all dividends in respect of
the shares of Preferred Stock so called for redemption will cease to accrue, the
Depositary Shares so called for redemption will no longer be deemed to be
outstanding and all rights of the holders of the Depositary Receipts evidencing
the Depositary Shares so called for redemption will cease, except the right to
receive any moneys payable upon such redemption and any money or other property
to which the holders of such Depositary Receipts were entitled upon such
redemption upon surrender thereof to the applicable Preferred Stock Depositary.
VOTING OF THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the
applicable Preferred Stock are entitled to vote, a Preferred Stock Depositary
will be required to mail the information contained in such notice of meeting to
the record holders of the Depositary Receipts evidencing the Depositary Shares
which represent such Preferred Stock. Each record holder of Depositary Receipts
evidencing Depositary Shares on the record date (which will be the same date as
the record date for the Preferred Stock) will be entitled to instruct such
Preferred Stock Depositary as to the exercise of the voting rights pertaining to
the amount of Preferred Stock represented by such holder's Depositary Shares.
Such Preferred Stock Depositary will be required to vote the amount of Preferred
Stock represented by such Depositary Shares in accordance with such
instructions, and the Company will agree to take all reasonable action which may
be deemed necessary by such Preferred Stock Depositary in order to enable such
Preferred Stock Depositary to do so. Such Preferred Stock Depositary will be
required to abstain from voting the amount of Preferred Stock represented by
such Depositary Shares to the extent it does not receive specific instructions
from the holders of Depositary Receipts evidencing such Depositary Shares. A
Preferred Stock Depositary will not be responsible for any failure to carry out
any instruction to vote, or for the manner or effect of any such vote made, as
long as any such action or non-action is in good faith and does not result from
negligence or willful misconduct of such Preferred Stock Depositary.
LIQUIDATION PREFERENCE
In the event of the liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, the holders of each Depositary Receipt will be
entitled to the fraction of the liquidation preference accorded each share of
Preferred Stock represented by the Depositary Share evidenced by such Depositary
Receipt, as set forth in the applicable Prospectus Supplement.
CONVERSION OF PREFERRED STOCK
The Depositary Shares, as such, will not be convertible into Common Stock
or any other securities or property of the Company. Nevertheless, if so
specified in the applicable Prospectus Supplement relating to an offering of
Depositary Shares, the Depositary Receipts may be surrendered by holders thereof
to the applicable Preferred Stock Depositary with written instructions to such
Preferred Stock Depositary to instruct the Company to cause conversion of the
Preferred Stock represented by the Depositary Shares evidenced by
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such Depositary Receipts into whole shares of Common Stock, other shares of
Preferred Stock of the Company or other shares of stock, and the Company will
agree that upon receipt of such instructions and any amounts payable in respect
thereof, it will cause the conversion thereof utilizing the same procedures as
those provided for delivery of Preferred Stock to effect such conversion. If the
Depositary Shares evidenced by a Depositary Receipt are to be converted in part
only, a new Depositary Receipt or Receipts will be issued for any Depositary
Shares not to be converted. No fractional shares of Common Stock will be issued
upon conversion, and if such conversion will result in a fractional share being
issued, an amount will be paid in cash by the Company equal to the value of the
fractional interest based upon the closing price of the Common Stock on the last
business day prior to the conversion.
AMENDMENT AND TERMINATION OF A DEPOSIT AGREEMENT
Any form of Depositary Receipt evidencing Depositary Shares which will
represent Preferred Stock and any provision of a Deposit Agreement will be
permitted at any time to be amended by agreement between the Company and the
applicable Preferred Stock Depositary. However, any amendment that materially
and adversely alters the rights of the holders of Depositary Receipts or that
would be materially and adversely inconsistent with the rights granted to the
holders of the related Preferred Stock will not be effective unless such
amendment has been approved by the existing holders of at least two-thirds of
the applicable Depositary Shares evidenced by the applicable Depositary Receipts
then outstanding. No amendment shall impair the right, subject to certain
anticipated exceptions in the Deposit Agreements, of any holders of Depositary
Receipts to surrender any Depositary Receipt with instructions to deliver to the
holder the related Preferred Stock and all money and other property, if any,
represented thereby, except in order to comply with law. Every holder of an
outstanding Depositary Receipt at the time any such amendment becomes effective
shall be deemed, by continuing to hold such Depositary Receipt, to consent and
agree to such amendment and to be bound by the applicable Deposit Agreement as
amended thereby.
A Deposit Agreement will be permitted to be terminated by the Company upon
not less than 30 days' prior written notice to the applicable Preferred Stock
Depositary if (i) such termination is necessary to preserve the Company's status
as a REIT or (ii) a majority of each series of Preferred Stock affected by such
termination consents to such termination, whereupon such Preferred Stock
Depositary will be required to deliver or make available to each holder of
Depositary Receipts, upon surrender of the Depositary Receipts held by such
holder, such number of whole or fractional shares of Preferred Stock as are
represented by the Depositary Shares evidenced by such Depositary Receipts
together with any other property held by such Preferred Stock Depositary with
respect to such Depositary Receipts. The Company will agree that if a Deposit
Agreement is terminated to preserve the Company's status as a REIT, then the
Company will use its best efforts to list the Preferred Stock issued upon
surrender of the related Depositary Shares on a national securities exchange. In
addition, a Deposit Agreement will automatically terminate if (i) all
outstanding Depositary Shares thereunder shall have been redeemed, (ii) there
shall have been a final distribution in respect of the related Preferred Stock
in connection with any liquidation, dissolution or winding up of the Company and
such distribution shall have been distributed to the holders of Depositary
Receipts evidencing the Depositary Shares representing such Preferred Stock or
(iii) each share of the related Preferred Stock shall have been converted into
stock of the Company not so represented by Depositary Shares.
CHARGES OF A PREFERRED STOCK DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of a Deposit Agreement. In addition, the
Company will pay the fees and expenses of a Preferred Stock Depositary in
connection with the performance of its duties under a Deposit Agreement.
However, holders of Depositary Receipts will pay the fees and expenses of a
Preferred Stock Depositary for any duties requested by such holders to be
performed which are outside of those expressly provided for in the applicable
Deposit Agreement.
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RESIGNATION AND REMOVAL OF DEPOSITARY
A Preferred Stock Depositary will be permitted to resign at any time by
delivering to the Company notice of its election to do so, and the Company will
be permitted at any time to remove a Preferred Stock Depositary, any such
resignation or removal to take effect upon the appointment of a successor
Preferred Stock Depositary. A successor Preferred Stock Depositary will be
required to be appointed within 60 days after delivery of the notice of
resignation or removal and will be required to be a bank or trust company having
its principal office in the United States and having a combined capital and
surplus of at least $50,000,000.
MISCELLANEOUS
A Preferred Stock Depositary will be required to forward to holders of
Depositary Receipts any reports and communications from the Company which are
received by such Preferred Stock Depositary with respect to the related
Preferred Stock.
Neither a Preferred Stock Depositary nor the Company will be liable if it
is prevented from or delayed in, by law or any circumstances beyond its control,
performing its obligations under a Deposit Agreement. The obligations of the
Company and a Preferred Stock Depositary under a Deposit Agreement will be
limited to performing their duties thereunder in good faith and without
negligence (in the case of any action or inaction in the voting of Preferred
Stock represented by the applicable Depositary Shares), gross negligence or
willful misconduct, and neither the Company nor any applicable Preferred Stock
Depositary will be obligated to prosecute or defend any legal proceeding in
respect of any Depositary Receipts, Depositary Shares or shares of Preferred
Stock represented thereby unless satisfactory indemnity is furnished. The
Company and any Preferred Stock Depositary will be permitted to rely on written
advice of counsel or accountants, or information provided by persons presenting
shares of Preferred Stock represented thereby for deposit, holders of Depositary
Receipts or other persons believed in good faith to be competent to give such
information, and on documents believed in good faith to be genuine and signed by
a proper party.
In the event a Preferred Stock Depositary shall receive conflicting claims,
requests or instructions from any holders of Depositary Receipts, on the one
hand, and the Company on the other hand, such Preferred Stock Depositary shall
be entitled to act on such claims, requests or instructions received from the
Company.
FEDERAL INCOME TAX CONSIDERATIONS
INTRODUCTORY NOTES
This discussion summarizes the material Federal income tax considerations
that may be relevant to a prospective holder of the securities. This discussion
is based on current law. The discussion is not exhaustive of all possible tax
considerations and does not give a detailed discussion of any state, local, or
foreign tax considerations. It also does not discuss all of the aspects of
Federal income taxation that may be relevant to a prospective holder of
securities in light of his particular circumstances or to certain types of
holders (including insurance companies, tax-exempt entities, financial
institutions or broker-dealers, foreign corporations and persons who are not
citizens or residents of the United States) who are subject to special treatment
under the Federal income tax laws. As used in this section, the term "Company"
refers solely to Post Properties, Inc.
EACH PROSPECTIVE PURCHASER IS ADVISED TO CONSULT WITH HIS OWN TAX ADVISOR
REGARDING THE SPECIFIC TAX CONSEQUENCES TO HIM OF THE PURCHASE, OWNERSHIP AND
SALE OF SECURITIES IN AN ENTITY ELECTING TO BE TAXED AS A REAL ESTATE INVESTMENT
TRUST, INCLUDING THE FEDERAL, STATE, LOCAL, FOREIGN, AND OTHER TAX CONSEQUENCES
OF SUCH PURCHASE, OWNERSHIP, SALE, AND ELECTION AND OF POTENTIAL CHANGES IN
APPLICABLE TAX LAWS.
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TAXATION OF THE COMPANY
General. The Company had made an election to be taxed as a REIT under
Sections 856 through 860 of the Code effective for its short taxable year ending
on December 31, 1993. The Company's qualification and taxation as a REIT depends
upon the Company's ability to meet on a continuing basis, through actual annual
operating results, distribution levels and diversity of stock ownership, the
various qualification tests and organizational requirements imposed under the
Code, as discussed below. The Company believes that it is organized and has
operated in such a manner as to qualify under the Code for taxation as a REIT
commencing with its 1993 taxable year, and the Company intends to continue to
operate in such a manner. No assurance, however, can be given that the Company
will operate in a manner so as to qualify or remain qualified as a REIT. See
"Failure to Qualify" below.
In the opinion of King & Spalding, the Company met the requirements for
qualification and taxation as a REIT for its taxable years ended December 31,
1993, 1994 and 1995, and its current and proposed method of operation should
enable it to continue to meet the requirements for qualification and taxation as
a REIT. This opinion is based on various assumptions relating to the
organization and operation of the Operating Partnership and the partnerships in
which the Operating Partnership owns or has owned an interest (referred to
herein as "Subsidiary Partnerships") and is conditioned upon certain
representations made by the Company as to certain relevant factual matters
relating to the organization and expected manner of operation of the Company,
the Operating Partnership, and the Subsidiary Partnerships. King & Spalding is
not aware of any facts or circumstances that are inconsistent with these
assumptions and representations. Moreover, such qualification and taxation as a
REIT will depend upon the Company's ability to meet on a continuing basis,
through actual annual operating results, distribution levels and diversity of
stock ownership, the various qualification tests imposed under the Code
discussed below. King & Spalding will not review compliance with these tests on
a continuing basis. No assurance can be given that the Company will satisfy such
tests on a continuing basis. See "Failure to Qualify" below.
The following is a general summary of the Code provisions that govern the
Federal income tax treatment of a REIT and its shareholders. These provisions of
the Code are highly technical and complex. This summary is qualified in its
entirety by the applicable Code provisions, the regulations promulgated
thereunder ("Treasury Regulations"), and administrative and judicial
interpretations thereof.
If the Company qualifies for taxation as a REIT, it generally will not be
subject to Federal corporate income taxes on net income that it currently
distributes to shareholders. This treatment substantially eliminates the "double
taxation" (at the corporate and shareholder levels) that generally results from
investment in a corporation. Notwithstanding its REIT election, however, the
Company will be subject to Federal income tax in the following circumstances.
First, the Company will be taxed at regular corporate rates on any undistributed
taxable income, including undistributed net capital gains. Second, under certain
circumstances, the Company may be subject to the "alternative minimum tax" on
its items of tax preference. Third, if the Company has (i) net income from the
sale or other disposition of "foreclosure property" (which is, in general,
property acquired by foreclosure or otherwise on default of a loan secured by
the property) which is held primarily for sale to customers in the ordinary
course of business or (ii) other non-qualifying income from foreclosure
property, it will be subject to tax at the highest corporate rate on such
income. Fourth, if the Company has net income from prohibited transactions
(which are, in general, certain sales or other dispositions of property (other
than foreclosure property) held primarily for sale to customers in the ordinary
course of business), such income will be subject to a 100% tax. Fifth, if the
Company should fail to satisfy the 75% gross income test or the 95% gross income
test (as discussed below), and has nonetheless maintained its qualification as a
REIT because certain other requirements have been met, it will be subject to a
100% tax on the net income attributable to the greater of the amount by which
the Company fails the 75% or 95% test, multiplied by a fraction intended to
reflect the Company's profitability. Sixth, if the Company should fail to
distribute during each calendar year at least the sum of (i) 85% of its REIT
ordinary income for such year, (ii) 95% of its REIT capital gain net income for
such year, and (iii) any undistributed taxable income from prior years, the
Company would be subject to a 4% excise tax on the excess of such required
distribution over the amounts actually distributed. Seventh, if the Company
acquires any asset from a C corporation (i.e., a corporation generally subject
to full corporate level tax) in a transaction in which the basis of the asset in
the
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Company's hands is determined by reference to the basis of the asset (or any
other property) in the hands of the C corporation, and the Company recognizes
gain on the disposition of such asset during the 10-year period beginning on the
date on which such asset was acquired by the Company, then, to the extent of
such property's "built-in" gain (the excess of the fair market value of such
property at the time of acquisition by the Company over the adjusted basis of
such property at such time), such gain will be subject to tax at the highest
regular corporate rate applicable (as provided in IRS regulations that have not
yet been promulgated).
Requirements for Qualification. The Code defines a REIT as a corporation,
trust or association (1) which is managed by one or more trustees or directors;
(2) the beneficial ownership of which is evidenced by transferable shares or by
transferable certificates of beneficial interest; (3) which would be taxable as
a domestic corporation but for Sections 856 through 859 of the Code; (4) which
is neither a financial institution nor an insurance company subject to certain
provisions of the Code; (5) the beneficial ownership of which is held by 100 or
more persons; (6) during the last half of each taxable year not more than 50% in
value of the outstanding stock of which is owned, directly or indirectly, by
five or fewer individuals (as defined in the Code to include certain entities);
and (7) which meets certain other tests, described below, regarding the nature
of its income and assets. The Code provides that conditions (1) through (4),
inclusive, must be met during the entire taxable year and that condition (5)
must be met during at least 335 days of a taxable year of 12 months, or during a
proportionate part of a taxable year of less than 12 months. Conditions (5) and
(6) will not apply until after the first taxable year for which an election is
made to be taxed as a REIT. The Company has issued sufficient shares of Common
Stock with sufficient diversity of ownership to allow the Company to satisfy
requirements (5) and (6). In addition, the Company's Articles of Incorporation
contain restrictions regarding the transfer of its shares that are intended to
assist the Company in continuing to satisfy the share ownership requirements
described in (5) and (6) above. See "Capital Stock of the
Company -- Restrictions on Transfer."
In addition, a corporation may not elect to become a REIT unless its
taxable year is the calendar year. The Company's taxable year is the calendar
year.
In the case of a REIT which is a partner in a partnership, Treasury
Regulations provide that the REIT will be deemed to own its proportionate share
of the assets of the partnership and will be deemed to be entitled to the income
of the partnership attributable to such share. In addition, the character of the
assets and gross income of the partnership will retain the same character in the
hands of the REIT for purposes of Section 856 of the Code, including satisfying
the gross income tests and asset tests (as discussed below). Thus, the Company's
proportionate share of the assets, liabilities and items of income of the
Operating Partnership and any subsidiary partnerships are treated as assets,
liabilities and items of the Company for purposes of applying the requirements
described herein.
Income Tests. In order to maintain qualification as a REIT, three gross
income requirements must be satisfied annually. First, at least 75% of the
REIT's gross income (excluding gross income from prohibited transactions) for
each taxable year must be derived directly or indirectly from investments
relating to real property or mortgages on real property (including "rents from
real property" and, in certain circumstances, interest) or from certain types of
temporary investments. Second, at least 95% of the REIT's gross income
(excluding gross income from prohibited transactions) for each taxable year must
be derived from such real property investments described above, and from
dividends, interest and gain from the sale or disposition of stock or
securities, or from any combination of the foregoing. Third, short-term gain
from the sale or other disposition of stock or securities, gain from prohibited
transactions and gain on the sale or other disposition of real property held for
less than four years (apart from involuntary conversions and sales of
foreclosure property) must represent less than 30% of the REIT's gross income
(including gross income from prohibited transactions) for each taxable year. For
purposes of applying the 30% gross income test, the holding period of
Communities held by Operating Partnership on the date of the Initial Offering
will be deemed to have commenced on such date.
Rents received by the Company will qualify as "rents from real property" in
satisfying the above gross income tests only if several conditions are met.
First, the amount of rent must not be based in whole or in part on the income or
profits of any person. However, an amount received or accrued generally will not
be excluded
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from "rents from real property" solely by reason of being based on a fixed
percentage or percentages of receipts or sales. Second, rents received from a
resident will not qualify as "rents from real property" if the Company, or an
owner of 10% or more of the Company, directly or constructively owns 10% or more
of such resident (a "Related Party Tenant"). Third, if rent attributable to
personal property that is leased in connection with a lease of real property is
greater than 15% of the total rent received under the lease, then the portion of
rent attributable to such personal property will not qualify as "rents from real
property." The Company does not charge, and does not anticipate charging, rent
for any portion of any Community that is based in whole or in part on the income
or profits of any person, and the Company does not receive, and does not
anticipate receiving, any rents from Related Party Tenants. Finally, for rents
received to qualify as "rents from real property," the Company generally must
not operate or manage the property or furnish or render services to residents,
other than through an "independent contractor" from whom the Company derives no
revenue. The "independent contractor" requirement, however, does not apply to
the extent the services provided by the Company are "usually or customarily
rendered" in connection with the rental of space for occupancy only and are not
otherwise considered "rendered to the occupant." The Operating Partnership
provides certain services with respect to its Communities, and the Company has
received a ruling from the IRS that the provision of such services will not
cause the rents received with respect to the Communities to fail to qualify as
"rents from real property." Based on the IRS ruling and the Operating
Partnership's knowledge of the apartment markets in the geographic regions in
which it operates, the Operating Partnership believes that all services that are
provided to the tenants of the Communities will be considered "usually or
customarily" rendered in connection with the rental of apartment communities
comparable to the Communities. Further, any noncustomary services will be
provided only through qualifying independent contractors.
The Operating Partnership receives fees in consideration of the performance
of management, landscaping and administrative services with respect to
properties that are not wholly owned, directly or indirectly, by the Operating
Partnership. A portion of such fees (corresponding to that portion of any such
property owned by a third party) generally will not qualify under the 75% or 95%
gross income tests. The Company will also receive certain other types of
non-qualifying income, including its allocable share of any dividends paid by
Post Services to the Operating Partnership (which qualify under the 95% gross
income test but not under the 75% gross income test). The Company believes,
however, that the aggregate amount of such fees and other non-qualifying income
in any taxable year will not cause the Company to exceed the limits on
non-qualifying income under the 75% and 95% gross income tests.
If the Company fails to satisfy one or both of the 75% or 95% gross income
tests for any taxable year, it may nevertheless qualify as a REIT for such year
if it is entitled to relief under certain provisions of the Code. These relief
provisions generally will be available if the Company's failure to meet such
tests was due to reasonable cause and not due to willful neglect, the Company
attaches a schedule of the sources of its income to its return, and any income
information on the schedules was not due to fraud with intent to evade tax. It
is not possible, however, to state whether in all circumstances the Company
would be entitled to the benefit of these relief provisions. As discussed above
in "General," even if these relief provisions were to apply, a tax would be
imposed with respect to the excess net income.
Asset Tests. At the close of each quarter of its taxable year, the Company
must also satisfy three tests relating to the nature of its assets. First, at
least 75% of the value of the Company's total assets must be represented by real
estate assets (including (i) its allocable share of real estate assets held by
the Operating Partnership and the Subsidiary Partnerships and (ii) stock or debt
instruments held for not more than one year purchased with the proceeds of a
stock offering or long-term (at least five years) debt offering of the Company),
cash, cash items and government securities. Second, not more than 25% of the
Company's total assets may be represented by securities other than those in the
75% asset class. Third, of the investments included in the 25% asset class, the
value of any one issuer's securities owned by the Company may not exceed 5% of
the value of the Company's total assets, and the Company may not own more than
10% of any one issuer's outstanding voting securities. The 5% test must
generally be met for any quarter in which a REIT acquires securities of an
issuer. Thus, this requirement must be satisfied not only on the date that the
Company initially acquired an interest in securities in Post Services, but also
each time the Company
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increases its ownership interest in securities of Post Services (e.g., as
limited partners exercise their redemption rights).
As described above, the Operating Partnership owns 100% of the nonvoting
stock and 1% of the voting stock of Post Services. In addition, the Operating
Partnership also holds a note of Post Services. By virtue of its ownership of
Units, the Company is deemed to own its pro rata share of assets of the
Operating Partnership and any subsidiary partnerships, including the securities
of Post Services. The Operating Partnership does not own more than 10% of the
voting securities of Post Services, and therefore the Company does not own more
than 10% of the voting securities of Post Services. In addition, based upon its
analysis of the estimated value of the debt and equity securities of Post
Services owned by the Operating Partnership relative to the estimated value of
the other assets owned by the Operating Partnership, the Company believes that
its pro rata share of the debt and equity securities of Post Services held by
the Operating Partnership at all relevant times has been and is less than 5% of
the total value of the Company's assets, and King & Spalding in rendering its
opinion as to the Company's qualification as a REIT is relying on the Company's
representation with respect to the value of Post Services and its wholly owned
subsidiaries. However, no independent appraisals have been obtained to support
this conclusion, and King & Spalding, in rendering its opinion as to the
Company's qualification as a REIT, is relying on the Company's representation
with respect to the value of Post Services and its wholly-owned subsidiaries.
After reasonable inquiry, King & Spalding is not aware of any facts inconsistent
with such representation. Although the Company plans to take steps to ensure
that it satisfies the 5% value test for any quarter with respect to which any
such acquisition is to occur, there can be no assurance that such steps will
always be successful or will not require a reduction in the Operating
Partnership's overall interest in Post Services.
Annual Distribution Requirements. The Company, in order to qualify as a
REIT, is required to distribute dividends (other than capital gain dividends) to
its shareholders in an amount at least equal to (A) the sum of (i) 95% of the
Company's "REIT taxable income" (computed without regard to the dividends paid
deduction and the REIT's net capital gain) and (ii) 95% of the net income (after
tax), if any, from foreclosure property, minus (B) the sum of certain items of
noncash income. Such distributions must be paid in the taxable year to which
they relate, or in the following taxable year if declared before the Company
timely files its tax return for such year and if paid on or before the first
regular dividend payment after such declaration. To the extent that the Company
does not distribute all of its net capital gain or distributes at least 95%, but
less than 100%, of its "REIT taxable income," as adjusted, it will be subject to
tax on the undistributed amount at regular capital gains and ordinary corporate
tax rates. Furthermore, if the Company should fail to distribute during each
calendar year at least the sum of (i) 85% of its REIT ordinary income for such
year, (ii) 95% of its REIT capital gain income for such year, and (iii) any
undistributed taxable income from prior periods, the Company will be subject to
a 4% excise tax on the excess of such required distribution over the amounts
actually distributed.
The Company has made and intends to continue to make timely distributions
sufficient to satisfy the annual distribution requirements. In this regard, the
Partnership Agreement authorizes the Company, as general partner, to take such
steps as may be necessary to cause the Operating Partnership to distribute to
its partners an amount sufficient to permit the Company to meet these
distribution requirements. It is possible, however, that the Company, from time
to time, may not have sufficient cash or other liquid assets to meet the
distribution requirements due to timing differences between the actual receipt
of income and actual payment of deductible expenses and the inclusion of such
income and deduction of such expenses in arriving at taxable income of the
Company, or if the amount of nondeductible expenses such as principal
amortization or capital expenditures exceed the amount of noncash deductions. In
the event that such timing differences occur, in order to meet the distribution
requirements, the Company may cause the Operating Partnership to arrange for
short-term, or possibly long-term, borrowing to permit the payment of required
dividends. If the amount of nondeductible expenses exceeds noncash deductions,
the Operating Partnership may refinance its indebtedness to reduce principal
payments and borrow funds for capital expenditures.
Under certain circumstances, the Company may be able to rectify a failure
to meet the distribution requirement for a year by paying "deficiency dividends"
to shareholders in a later year that may be included in
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the Company's deduction for dividends paid for the earlier year. Thus, the
Company may be able to avoid being taxed on amounts distributed as deficiency
dividends; however, the Company will be required to pay interest to the IRS
based upon the amount of any deduction taken for deficiency dividends.
Failure to Qualify. If the Company fails to qualify for taxation as a REIT
in any taxable year and no relief provisions apply, the Company will be subject
to tax (including any applicable alternative minimum tax) on its taxable income
at regular corporate rates. Distributions to shareholders in any year in which
the Company fails to qualify will not be deductible by the Company, nor will
they be required to be made. In such event, to the extent of current and
accumulated earnings and profits, all distributions to shareholders will be
taxable as ordinary income, and, subject to certain limitations in the Code,
corporate distributees may be eligible for the dividends received deduction.
Unless entitled to relief under specific statutory provisions, the Company also
will be disqualified from taxation as a REIT for the four taxable years
following the year during which qualification was lost. It is not possible to
state whether in all circumstances the Company would be entitled to such
statutory relief.
TAXATION OF SHAREHOLDERS
Taxation of Taxable Domestic Shareholders. As long as the Company
qualifies as a REIT, distributions made to the Company's taxable domestic
shareholders out of current or accumulated earnings and profits (and not
designated as capital gain dividends) will be taken into account by them as
ordinary income, and corporate shareholders will not be eligible for the
dividends received deduction as to such amounts. Distributions that are
designated as capital gain dividends will be taxed as long-term capital gains
(to the extent they do not exceed the Company's actual net capital gain for the
taxable year) without regard to the period for which the shareholder has held
his shares. However, corporate shareholders may be required to treat up to 20%
of certain capital gain dividends as ordinary income. Distributions in excess of
current and accumulated earnings and profits will not be taxable to a
shareholder to the extent that they do not exceed the adjusted basis of the
shareholder's shares of Common Stock, but rather will reduce the adjusted basis
of such shares. To the extent that such distributions exceed the adjusted basis
of a shareholder's shares of Common Stock, they will be included in income as
long-term capital gain (or short-term capital gain if the shares have been held
for one year or less), assuming the shares are a capital asset in the hands of
the shareholder. In addition, any dividend declared by the Company in October,
November or December of any year payable to a shareholder of record on a
specific date in any such month shall be treated as both paid by the Company and
received by the shareholder on December 31 of such year, provided that the
dividend is actually paid by the Company during January of the following
calendar year. Shareholders may not include in their individual income tax
returns any net operating losses or capital losses of the Company.
In general, any loss upon a sale or exchange of shares of Common Stock by a
shareholder who has held such shares for six months or less (after applying
certain holding period rules) will be treated as a long-term capital loss to the
extent of distributions from the Company required to be treated by such
shareholder as long-term capital gain.
Backup Withholding. The Company will report to its domestic shareholders
and the IRS the amount of dividends paid during each calendar year, and the
amount of tax withheld, if any, with respect thereto. Under the backup
withholding rules, a shareholder may be subject to backup withholding at the
rate of 31% with respect to dividends paid unless such holder (a) is a
corporation or comes within certain other exempt categories and, when required,
demonstrates this fact, or (b) provides a taxpayer identification number,
certifies as to no loss of exemption from backup withholding, and otherwise
complies with applicable requirements of the backup withholding rules. A
shareholder who does not provide the Company with its correct taxpayer
identification number may also be subject to penalties imposed by the IRS. Any
amount paid as backup withholding will be creditable against the shareholder's
income tax liability. In addition, the Company may be required to withhold a
portion of capital gain distributions made to any shareholders who fail to
certify their non-foreign status to the Company. See "Taxation of Foreign
Shareholders" below.
Taxation of Tax-Exempt Shareholders. The IRS has ruled that amounts
distributed by a REIT to a tax-exempt employees' pension trust do not constitute
"unrelated business taxable income" ("UBTI"). Based
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upon this ruling and subject to the discussion below regarding qualified pension
trust investors, distributions by the Company to a shareholder that is a
tax-exempt entity should not constitute UBTI, provided that the tax-exempt
entity has not financed the acquisition of its shares with "acquisition
indebtedness" within the meaning of the Code and the shares of Common Stock are
not otherwise used in an unrelated trade or business of the tax-exempt entity.
Revenue rulings, however, are interpretative in nature and subject to revocation
or modification by the IRS.
A "qualified trust" (defined to be any trust described in section 401(a) of
the Code and exempt from tax under section 501(a) of the Code) that holds more
than 10% of the value of the shares of a REIT may be required, under certain
circumstances, to treat a portion of distributions from the REIT as UBTI. This
requirement will apply for a taxable year only if (i) the REIT satisfies the
requirement that not more than 50% of the value of its shares be held by five or
fewer individuals (the "five or fewer requirement") by relying on a special
"look-through" rule under which shares held by qualified trust shareholders are
treated as held by the beneficiaries of such trusts in proportion to their
actuarial interests therein, and (ii) the REIT is "predominantly held" by
qualified trusts. A REIT is "predominantly held" if either (i) a single
qualified trust holds more than 25% of the value of the REIT shares or (ii) one
or more qualified trusts, each owning more than 10% of the value of the REIT
shares, hold in the aggregate more than 50% of the value of the REIT shares. If
the foregoing requirements are met, the percentage of any REIT dividend treated
as UBTI to a qualified trust that owns more than 10% of the value of the REIT
shares is equal to the ratio of (a) the UBTI earned by the REIT (treating the
REIT as if it were a qualified trust and therefore subject to tax on its UBTI)
to (b) the total gross income (less certain associated expenses) of the REIT. A
de minimis exception applies where the ratio set forth in the preceding sentence
is less than 5% for any year.
The provisions requiring qualified trusts to treat a portion of REIT
distributions as UBTI will not apply if the REIT is able to satisfy the five or
fewer requirement without relying upon the "look-through" rule. The restrictions
on ownership of Common Shares in the Articles should prevent application of the
foregoing provisions to qualified trusts purchasing Common Stock pursuant to the
Offering, absent a waiver of the restrictions by the Board of Directors.
Taxation of Foreign Shareholders. The rules governing U.S. Federal income
taxation of nonresident alien individuals, foreign corporations, foreign
partnerships and other foreign shareholders (collectively, "Non-U.S.
Shareholders") are complex, and no attempt will be made herein to provide more
than a limited summary of such rules. Prospective Non-U.S. Shareholders should
consult with their own tax advisors to determine the impact of U.S. Federal,
state and local income tax laws with regard to an investment in Common Stock,
including any reporting requirements.
Distributions that are not attributable to gain from sales or exchanges by
the Company of U.S. real property interests and not designated by the Company as
capital gain dividends will be treated as dividends of ordinary income to the
extent that they are made out of current or accumulated earnings and profits of
the Company. Such distributions, ordinarily, will be subject to a withholding
tax equal to 30% of the gross amount of the distribution unless an applicable
tax treaty reduces that tax. However, if income from the investment in the
shares of Common Stock is treated as effectively connected with the Non-U.S.
Shareholder's conduct of a U.S. trade or business, the Non-U.S. Shareholder
generally will be subject to a tax at graduated rates, in the same manner as
U.S. shareholders are taxed with respect to such dividends (and may also be
subject to the 30% branch profits tax if the shareholder is a foreign
corporation). The Company expects to withhold U.S. income tax at the rate of 30%
on the gross amount of any dividends paid to a Non-U.S. Shareholder that are not
designated as capital gain dividends unless (i) a lower treaty rate applies and
the required form evidencing eligibility for that reduced rate is filed with the
Company or (ii) the Non-U.S. Shareholder files an IRS Form 4224 with the Company
claiming that the distribution is "effectively connected" income. Distributions
in excess of current and accumulated earnings and profits of the Company will
not be taxable to a shareholder to the extent that they do not exceed the
adjusted basis of the shareholder's shares of Common Stock, but rather will
reduce the adjusted basis of such shares. To the extent that such distributions
exceed the adjusted basis of a Non-U.S. Shareholder's shares, they will give
rise to tax liability if the Non-U.S. Shareholder would otherwise be subject to
tax on any gain from the sale or disposition of his shares of Common Stock as
described below. If it cannot be determined at the time a distribution is made
whether or not such distribution
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will be in excess of current and accumulated earnings and profits, the
distribution will be subject to withholding at the rate applicable to dividends.
However, the Non-U.S. Shareholder may seek a refund of such amounts from the IRS
if it is subsequently determined that such distribution was, in fact, in excess
of current and accumulated earnings and profits of the Company.
For any year in which the Company qualifies as a REIT, distributions that
are attributable to gain from sales or exchanges by the Company of U.S. real
property interests will be taxed to a Non-U.S. Shareholder under the provisions
of the Foreign Investment in Real Property Tax Act of 1980 ("FIRPTA"). Under
FIRPTA, these distributions are taxed to a Non-U.S. Shareholder as if such gain
were effectively connected with a U.S. business. Thus, Non-U.S. Shareholders
will be taxed on such distributions at the normal capital gain rates applicable
to U.S. shareholders (subject to applicable alternative minimum tax and a
special alternative minimum tax in the case of nonresident alien individuals).
Also, distributions subject to FIRPTA may be subject to a 30% branch profits tax
in the hands of a corporate Non-U.S. Shareholder not entitled to treaty relief
or exemption. The Company is required by applicable Treasury Regulations to
withhold 35% of any distribution that could be designated by the Company as a
capital gain dividend. This amount is creditable against the Non-U.S.
Shareholder's FIRPTA tax liability.
Gain recognized by a Non-U.S. Shareholder upon a sale of Common Stock
generally will not be taxed under FIRPTA if the Company is a "domestically
controlled REIT," defined generally as a REIT in which at all times during a
specified testing period less than 50% in value of the stock was held directly
or indirectly by foreign persons. The Company believes that it currently
qualifies as a "domestically controlled REIT," and that the sale of Common Stock
will not therefore be subject to tax under FIRPTA. Because the Company is
publicly traded, however, no assurance can be given that the Company will
continue to be a domestically controlled REIT. If the Company were not a
domestically controlled REIT, whether a Non-U.S. Shareholder's gain would be
taxed under FIRPTA would depend on whether the Common Stock were regularly
traded on an established securities market and on the size of the selling
shareholder's interest in the Company. In addition, gain not subject to FIRPTA
will be taxable to a Non-U.S. Shareholder if (i) the investment in Common Stock
is treated as effectively connected with the Non-U.S. Shareholder's U.S. trade
or business, in which case the Non-U.S. Shareholder will be subject to the same
treatment as U.S. shareholders with respect to such gain, or (ii) the Non-U.S.
Shareholder is a nonresident alien individual who was present in the United
States for 183 days or more during the taxable year and has a "tax home" in the
United States, in which case the nonresident alien individual will be subject to
a 30% tax on the individual's capital gains. If the gain on the sale of Common
Stock were to be subject to tax under FIRPTA, the Non-U.S. Shareholder would be
subject to the same treatment as U.S. shareholders with respect to such gain
(subject to applicable alternative minimum tax and a special alternative minimum
tax in the case of nonresident alien individuals).
OTHER TAX CONSIDERATIONS
Tax Status of Operating Partnership and Other Partnerships' Effect on REIT
Qualification. All of the Company's investments have been made through the
Operating Partnership, which in turn holds an interest in a subsidiary
partnership (the "Subsidiary Partnership").
TAX STATUS OF THE OPERATING PARTNERSHIP
In the opinion of King & Spalding, which is based on certain
representations of the Operating Partnership and Subsidiary Partnership, the
Operating Partnership and the Subsidiary Partnership each qualify as a
partnership for Federal income tax purposes and not as an association taxable as
a corporation or as a publicly traded partnership.
A publicly traded partnership is a partnership whose interests are traded
on an established securities market or are readily tradable on a secondary
market or the substantial equivalent of a secondary market. The Treasury
Department recently issued regulations effective for taxable years beginning
after December 31, 1995 (the "PTP Regulations") that provide limited safe
harbors, which, if satisfied, will prevent a partnership's interests from being
treated as readily tradable on a secondary market or the substantial equivalent
thereof. The "private placement" safe harbor applies if (i) all interests in the
partnership were
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<PAGE> 77
issued in a transaction (or transactions) that was not required to be registered
under the Securities Act of 1933, as amended, and (ii) the partnership does not
have more than 100 partners at any time during the partnership's taxable year.
In determining the number of partners in a partnership, a person owning an
interest in a flow-through entity (i.e., a partnership, grantor trust, or S
corporation) that owns an interest in the partnership is treated as a partner in
such partnership only if (i) substantially all of the value of the person's
interest in the flowthrough entity is attributable to the flow-through entity's
interest (direct or indirect) in the partnership and (ii) a principal purpose of
the use of the tiered arrangement is to permit the partnership to satisfy the
100-partner limitation. The Operating Partnership does not currently meet the
private placement safe harbor of the PTP Regulations because it has more than
100 partners.
Under a special grandfather rule, an existing partnership may continue to
rely on safe harbors contained in IRS Notice 88-75 for a 10-year period. The
Company believes that the Operating Partnership has satisfied, and will continue
to satisfy, the private placement safe harbor under such Notice because, in
part, it has fewer than 500 direct and indirect partners. Upon expiration of the
grandfather period, if the Operating Partnership does not at that time satisfy
the private placement safe harbor of the PTP Regulations, it is possible that
the Operating Partnership could be classified as a publicly traded partnership.
In that event, the Operating Partnership should satisfy a special "passive
income" exception provided in Section 7704(c) of the Code and therefore should
not be subject to federal income tax at the corporate level. However, if the
Operating Partnership were classified as a publicly traded partnership, the
partners of the Operating Partnership would nevertheless be subject to special
passive loss rules in Section 469(k) of the Code.
If the Operating Partnership were treated as an association taxable as a
corporation, the Company would fail the 75% asset test. Further, if the
Subsidiary Partnership were treated as a taxable corporation, then the Company
would cease to qualify as a REIT if the Company's ownership interest in such
partnership exceeded 10% of the partnership's voting interests or the value of
such interest exceeded 5% of the value of the Company's assets. Furthermore, in
such a situation, distributions from the Subsidiary Partnership to the Company
would be treated as dividends, which are not taken into account in satisfying
the 75% gross income test described above and which could therefore make it more
difficult for the Company to meet such test, and the Company would not be able
to deduct its share of losses generated by any of the Subsidiary Partnerships in
computing its taxable income. See "Taxation of the Company (Failure to Qualify)"
above for a discussion of the effect of the Company's failure to meet such tests
for a taxable year.
Taxation of Post Services and Operating Subsidiaries. Post Services, Inc.
and its subsidiaries file a corporate consolidated return for Federal income tax
purposes. The consolidated taxable income of these companies, if any, is subject
to tax at regular corporate rates. To the extent such entities are required to
pay Federal, state and local income taxes, the cash available to shareholders
will be correspondingly reduced.
State and Local Taxes. The Company and its shareholders may be subject to
state or local taxation in various state or local jurisdictions, including those
in which it or they transact business or reside (although shareholders who are
individuals generally should not be required to file state income tax returns
outside of their state of residence with respect to the Company's operations and
distributions). The state and local tax treatment of the Company and its
shareholders may not conform to the Federal income tax consequences discussed
above. Consequently, prospective shareholders should consult their own tax
advisors regarding the effect of state and local tax laws on an investment in
the Securities.
34
<PAGE> 78
PLAN OF DISTRIBUTION
The Company and the Operating Partnership may sell Securities to or through
underwriters, and also may sell Securities directly to other purchasers or
through agents.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Securities, underwriters may receive
compensation from the Company, from the Operating Partnership or from purchasers
of Securities, for whom they may act as agents, in the form of discounts,
concessions, or commissions. Underwriters may sell Securities to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions, or commissions from the underwriters and/or commissions from the
purchasers for whom they may act as agents. Underwriters, dealers, and agents
that participate in the distribution of Securities may be deemed to be
underwriters, and any discounts or commissions they receive from the Company or
the Operating Partnership, and any profit on the resale of Securities they
realize may be deemed to be underwriting discounts and commissions, under the
Securities Act. Any such underwriter or agent will be identified, and any such
compensation received from the Company or the Operating Partnership will be
described, in the Prospectus Supplement.
Unless otherwise specified in the related Prospectus Supplement, each
series of Securities will be a new issue with no established trading market,
other than the Common Stock which is listed on the NYSE. Any shares of Common
Stock sold pursuant to a Prospectus Supplement will be listed on such exchange,
subject to official notice of issuance. The Company or the Operating Partnership
may elect to list any series of Debt Securities, Preferred Stock or Depositary
Shares on an exchange, but neither is obligated to do so. It is possible that
one or more underwriters may make a market in a series of Securities, but will
not be obligated to do so and may discontinue any market making at any time
without notice. Therefore, no assurance can be given as to the liquidity of the
trading market for the Securities.
Under agreements the Company and the Operating Partnership may enter into,
underwriters, dealers, and agents who participate in the distribution of
Securities may be entitled to indemnification by the Company or the Operating
Partnership against certain liabilities, including liabilities under the
Securities Act.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, or be customers of, the Company or the Operating
Partnership in the ordinary course of business.
If so indicated in the applicable Prospectus Supplement, the Company or the
Operating Partnership, as the case may be, will authorize underwriters or other
persons acting as the Company's or the Operating Partnership's agents to solicit
offers by certain institutions to purchase Securities from the Company or the
Operating Partnership at the public offering price set forth in such Prospectus
Supplement pursuant to delayed delivery contracts ("Contracts") providing for
payment and delivery on the date or dates stated in such Prospectus Supplement.
Each Contract will be for an amount not less than, and the aggregate principal
amount of Securities sold pursuant to Contracts shall be not less nor more than,
the respective amounts stated in the applicable Prospectus Supplement.
Institutions with whom Contracts, when authorized, may be made include
commercial savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions, and other institutions but
will in all cases be subject to the approval of the Company or the Operating
Partnership, as the case may be. Contracts will not be subject to any conditions
except (i) the purchase by an institution of the Securities covered by its
Contracts shall not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such institution is subject, and (ii)
if the Securities are being sold to underwriters, the Company or the Operating
Partnership, as the case may be, shall have sold to such underwriters the total
principal amount of the Securities less the principal amount thereof covered by
Contracts.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K of Post Properties, Inc. for the
year ended December 31, 1995, as amended by Forms 10-K/A filed on June 17, 1996
and July 23, 1996, and incorporated in this Prospectus by reference to the
Report on
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<PAGE> 79
Form 10 of Post Apartment Homes, L.P. dated as of April 15, 1996, as amended on
June 17, 1996 and July 23, 1996, have been so incorporated in reliance on the
reports of Price Waterhouse LLP, independent accountants, given on the authority
of said firm as experts in auditing and accounting.
LEGAL MATTERS
The legality of the Securities will be passed upon for the Company by King
& Spalding, Atlanta, Georgia. Herschel M. Bloom, a member of King & Spalding, is
a director of the Company.
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<PAGE> 80
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NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS IN
CONNECTION WITH THE OFFERING MADE BY THIS PROSPECTUS SUPPLEMENT AND THE
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE OPERATING PARTNERSHIP OR THE
UNDERWRITERS. THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS DO NOT CONSTITUTE AN
OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER TO SELL OR SOLICITATION IS NOT AUTHORIZED, OR
IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO,
OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS NOR ANY
SALE MADE HEREUNDER AND THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE OPERATING
PARTNERSHIP OR THE COMPANY SINCE THE DATE AS OF WHICH INFORMATION IS FURNISHED.
---------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PROSPECTUS SUPPLEMENT
Prospectus Supplement Summary......... S-3
Business and Communities.............. S-5
Community Information................. S-9
Recent Developments................... S-11
Use of Proceeds....................... S-12
Capitalization........................ S-13
Selected Financial Information........ S-14
Management's Discussion and Analysis
of Financial Condition and Results
of Operations....................... S-17
Management............................ S-35
Description of the Notes.............. S-36
Underwriting.......................... S-43
Legal Matters......................... S-43
PROSPECTUS
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 2
The Company and the Operating
Partnership......................... 3
Use of Proceeds....................... 3
Ratio of Earnings to Fixed Charges.... 3
Description of Debt Securities........ 4
Description of Common Stock........... 15
Description of Preferred Stock........ 17
Description of Depositary Shares...... 23
Federal Income Tax Considerations..... 26
Plan of Distribution.................. 35
Experts............................... 35
Legal Matters......................... 36
</TABLE>
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$100,000,000
POST APARTMENT HOMES, L.P.
% NOTES
DUE , 2003
---------------------------
PROSPECTUS SUPPLEMENT
---------------------------
MERRILL LYNCH & CO.
J.P. MORGAN & CO.
DEAN WITTER REYNOLDS INC.
SEPTEMBER , 1996
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