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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) October 23, 1997
Post Properties, Inc.
(Exact name of registrant as specified in its charter)
Georgia 1-12080 58-1550675
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
3350 Cumberland Circle, Atlanta, Georgia 30339
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (770) 850-4400
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This document consists of ____ pages
The Exhibit Index is at page 4.
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Item 2. Acquisition or Disposition of Assets
On October 24, 1997, Columbus Realty Trust, a Texas real estate
investment trust ("Columbus"), merged with and into Post Interim Holding
Company, Inc. (formerly Post LP Holdings, Inc.), a wholly owned subsidiary of
the Registrant (the "Merger") pursuant to the terms of an Agreement and Plan of
Merger dated as of August 1, 1997. Pursuant to the Merger, each outstanding
common share of beneficial interest, par value $.01 per share, of Columbus will
be converted into the right to receive 0.615 shares of common stock of the
Registrant, par value $.01 per share ("Post Common Stock"), with cash being paid
in lieu of fractional shares of Post Common Stock.
As a result of the Merger, the Registrant is the largest multi-family
REIT concentrating on the development of upscale multi-family apartment homes in
the major metropolitan markets of the Southeast and Southwest, with a total
market capitalization of approximately $2.2 billion.
On September 17, 1997, the Registrant filed financial statements of
Columbus and pro forma financial statements of the Registrant and Columbus with
the Securities and Exchange Commission (the "Commission") pursuant to a Current
Report on Form 8-K.
Item 5. Other Events
The Registrant announced today the issuance and sale (the "Offering")
of 2,000,000 7-5/8% Series B Cumulative Redeemable Preferred Shares (the "Series
B Preferred Shares") (plus an over-allotment option granted to the underwriters
to purchase up to an additional 300,000 Series B Preferred Shares). The
Registrant is filing this Current Report on Form 8-K so as to file with the
Commission certain items that are to be incorporated by reference into its
Registration Statement on Form S-3 (Registration No. 333-36595) with respect to
the Offering.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
1 - Purchase Agreement between the Registrant,
Post Apartment Homes, L.P. and Merrill Lynch
& Co., dated as of October 23, 1997
4(a) - Form of Amendment to Articles of
Incorporation designating the 7-5/8% Series
B Cumulative Redeemable Preferred Shares
4(b) - Form of Certificate for the 7-5/8% Series B
Cumulative Redeemable Preferred Shares
5 - Opinion of King & Spalding regarding
validity of 7-5/8% Series B Cumulative
Redeemable Preferred Shares
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8 - Opinion of King & Spalding relating to
certain tax matters
10 - Form of First Amendment to the Second
Amended and Restated Agreement of Limited
Partnership of Post Apartment Homes, L.P.
23 - Consent of King & Spalding (included in
Exhibits 5 and 8)
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
POST PROPERTIES, INC.
(Registrant)
Date: October 27, 1997 By: John A. Williams
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John A. Williams
Chairman of the Board, Chief Executive
Officer and Director
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number and Description Page
<S> <C> <C> <C>
1 - Purchase Agreement between the Registrant, Post
Apartment Homes, L.P. and Merrill Lynch & Co., dated as
of October 23, 1997
4(a) - Form of Amendment to Articles of Incorporation
designating the 7-5/8% Series B Cumulative Redeemable
Preferred Shares
4(b) - Form of Certificate for the 7-5/8% Series B Cumulative
Redeemable Preferred Shares
5 - Opinion of King & Spalding regarding validity of 7-5/8%
Series B Cumulative Redeemable Preferred Shares
8 - Opinion of King & Spalding relating to certain tax
matters
10 - Form of First Amendment to the Second Amended and Restated
Agreement of Limited Partnership of Post Apartment Homes, L.P.
23 - Consent of King & Spalding (included in Exhibits 5 and 8)
</TABLE>
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EXHIBIT 1
POST PROPERTIES, INC.
(a Georgia corporation)
Common Stock, Preferred Stock and Depositary Shares
PURCHASE AGREEMENT
October 23, 1997
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
250 Vesey Street
New York, New York 10281-1209
Ladies and Gentlemen:
Post Properties, Inc., a Georgia corporation (the "Company"), proposes
to issue and sell up to $450,000,000 aggregate initial public offering price of
its (i) shares of common stock, par value $.01 per share (the "Common Stock"),
(ii) shares of preferred stock, par value $.01 per share (the "Preferred
Stock"), and (iii) shares of Preferred Stock represented by Depositary Shares
(the "Depositary Shares") in amounts, at prices and on terms to be determined at
the time of offering.
The Preferred Stock will be issued in one or more series and each
series of Preferred Stock may vary, as applicable, as to the title, specific
number of shares, rank, stated value, liquidation preference, dividend rate or
rates (or method of calculation), dividend payment dates, redemption provisions,
sinking fund requirements, conversion provisions (and terms of the related
Underlying Securities (as defined below)) and any other variable terms as set
forth in the applicable articles of amendment (each, the "Articles of
Amendment") relating to such series of Preferred Stock. A series of Preferred
Stock may be represented by Depositary Shares that are evidenced by depositary
receipts (the "Depositary Receipts") issued pursuant to a deposit agreement
(each, a "Deposit Agreement") among the Company, the depositary identified
therein (the "Depositary") and the registered holders of the Depositary Receipts
issued thereunder.
As used herein, "Securities" shall mean the Common Stock, Preferred
Stock or Depositary Shares, or any combination thereof, initially issuable by
the Company and "Underlying Securities" shall mean the Common Stock or Preferred
Stock issuable upon conversion of the Preferred Stock or Depositary Shares, as
applicable. Unless the context otherwise requires, as used herein, "you" and
"your"
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shall mean the parties to whom this Agreement is addressed together with
the other parties, if any, identified in the applicable Terms Agreement (as
hereinafter defined) as additional co-managers with respect to Underwritten
Securities (as hereinafter defined) purchased pursuant thereto.
Whenever the Company determines to make an offering of Securities
through you, or through an underwriting syndicate managed by you, the Company
will enter into an agreement (each a "Terms Agreement") providing for the sale
of such Securities (the "Underwritten Securities") to, and the purchase and
offering thereof by, you and such other underwriters, if any, selected by you
(the "Underwriters," which term shall include you, whether acting as sole
Underwriter or as a member of an underwriting syndicate, as well as any
Underwriter substituted pursuant to Section 10 hereof). The Terms Agreement
relating to the offering of Underwritten Securities shall specify the number of
Underwritten Securities to be initially issued (the "Initial Underwritten
Securities"), the name of each Underwriter participating in such offering
(subject to substitution as provided in Section 10 hereof) and the name of any
Underwriter other than you acting as co-manager in connection with such
offering, the number of Initial Underwritten Securities which each such
Underwriter severally agrees to purchase, whether such offering is on a fixed or
variable price basis and, if on a fixed price basis, the initial offering price,
the price at which the Initial Underwritten Securities are to be purchased by
the Underwriters, the form, time, date and place of delivery and payment and any
delayed delivery arrangements of the Initial Underwritten Securities and any
other material variable terms of the Initial Underwritten Securities (including,
but not limited to, current ratings, if applicable, designations, liquidation
preferences, conversion provisions, redemption provisions and sinking fund
requirements), as well as the material variable terms of any related Underlying
Securities. In addition, if applicable, such Terms Agreement shall specify
whether the Company has agreed to grant to the Underwriters an option to
purchase additional Securities to cover over-allotments, if any, and the number
of Underwritten Securities subject to such option (the "Option Underwritten
Securities"). As used herein, the term "Underwritten Securities" shall include
the Initial Underwritten Securities and all or any portion of any Option
Underwritten Securities. The Terms Agreement, which shall be substantially in
the form of Exhibit A hereto, may take the form of an exchange of any standard
form of written telecommunication between you and the Company. Each offering of
Underwritten Securities through you as sole Underwriter or through an
underwriting syndicate managed by you will be governed by this Agreement, as
supplemented by the applicable Terms Agreement and such Terms Agreement shall
inure to the benefit of and be binding upon each Underwriter participating in
the offering of such Underwritten Securities.
The Company and Post Apartment Homes, L.P., a Georgia limited
partnership (the "Operating Partnership") have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
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(No. 333-36595) for the registration of, among other securities, the Securities
under the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 430A or Rule 415 of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), and the Company and the Operating Partnership have filed such
amendments thereto as may have been required prior to the execution of the
applicable Terms Agreement. Such registration statement (as amended, if
applicable) has been declared effective by the Commission. Such registration
statement and the prospectus constituting a part thereof (including in each case
the information, if any, deemed to be part thereof pursuant to Rule 430A(b) of
the 1933 Act Regulations, and each prospectus supplement relating to the
offering of Underwritten Securities pursuant to Rule 430A or Rule 415 of the
1933 Act Regulations (the "Prospectus Supplement")), including all documents
incorporated therein by reference, as from time to time amended or supplemented
pursuant to the 1933 Act, the Securities Exchange Act of 1934, as amended (the
"1934 Act") or otherwise, are collectively referred to herein as the
"Registration Statement" and the "Prospectus," respectively; provided, that if
any revised Prospectus shall be provided to you by the Company for use in
connection with the offering of Underwritten Securities which differs from the
Prospectus on file at the Commission at the time the Registration Statement
became effective (whether or not such revised prospectus is required to be filed
by the Company pursuant to Rule 424(b) of the 1933 Act Regulations), the term
"Prospectus" shall refer to each such revised prospectus from and after the time
it is first provided to you for such use; provided, further, that a Prospectus
Supplement shall be deemed to have supplemented the Prospectus only with respect
to the offering of Underwritten Securities to which it relates. Any registration
statement (including any supplement thereto or information which is deemed part
thereof) filed by the Company under Rule 462(b) of the 1933 Act Regulations (a
"Rule 462(b) Registration Statement") shall be deemed to be part of the
Registration Statement. Any prospectus (including any amendment or supplement
thereto or information which is deemed part thereof) included in the Rule 462(b)
Registration Statement and any term sheet as contemplated by Rule 434 of the
1933 Act Regulations (a "Term Sheet") shall be deemed to be part of the
Prospectus. All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, preliminary prospectus
supplement, Prospectus or Prospectus Supplement or any Term Sheet or
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any amendment or supplement to the foregoing shall be deemed to include the copy
filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system ("EDGAR").
The term "Subsidiary" as used herein means a corporation or a
partnership a majority of the outstanding equity interests of which is owned or
controlled, directly or indirectly, by the Company or the Operating
Partnerships, as the case may be, or by one or more other Subsidiaries of the
Company or the Operating Partnership.
SECTION 1. Representations and Warranties of the Company and the
Operating Partnership.
(a) The Company and the Operating Partnership, jointly and severally,
represent and warrant to you, as of the date hereof, and to you and each other
Underwriter named in the applicable Terms Agreement, as of the date thereof, as
of the Closing Time (as defined below) and, if applicable, as of each Date of
Delivery (as defined below) (in each case, a "Representation Date"), as follows:
(1) The Company and the Operating Partnership meet the
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement, the Prospectus and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any part
thereof has been issued under the 1933 Act and no proceeding for that
purpose has been instituted or is pending or, to the knowledge of the
Company, is contemplated or threatened by the Commission or by the
state securities authority of any jurisdiction, and any request on the
part of the Commission for additional information has been complied
with. No order preventing or suspending the use of the Prospectus has
been issued and no proceeding for that purpose has been instituted or,
to the knowledge of the Company or the Operating Partnership,
threatened by the Commission or by the state securities authority of
any jurisdiction.
(2) The Registration Statement, at the time it became effective,
complied, and the Registration Statement and the Prospectus at each
Representation Date will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations. The
Registration Statement, at the time the Registration Statement became
effective, did not, and as of each Representation Date, will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. At the date of the Prospectus, at
the Closing Time and at each Representation Date, the Prospectus and
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any amendments and supplements thereto (unless the term
"Prospectus" refers to a prospectus which has been provided to
you by the Company for use in connection with an offering of
Underwritten Securities which differs from the Prospectus on
file at the Commission at the time the Registration Statement
became effective, in which case at the time it is first
provided to you for such use) did not and will not contain an
untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading. If the Company elects to rely upon Rule
434 of the 1933 Act Regulations, the Company will comply with
the requirements of Rule 434. Notwithstanding the foregoing,
the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Company in
writing by any Underwriter through you expressly for use in
the Registration Statement or the Prospectus. If a Rule 462(b)
Registration Statement is required in connection with the
offering and sale of the Underwritten Securities, the Company
has complied or will comply with the requirements of Rule 111
of the 1933 Act Regulations relating to the payment of filing
fees therefor.
(3) Each preliminary prospectus, preliminary
prospectus supplement and Prospectus Supplement filed as part
of the Registration Statement as originally filed or as part
of any amendment thereto, or filed pursuant to Rule 424 under
the 1933 Act, complied, when so filed, in all material
respects with the 1933 Act Regulations and, if applicable,
each preliminary prospectus and the Prospectus delivered to
the Underwriters for use in connection with the offering of
Underwritten Securities will, at the time of such delivery, be
identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(4) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they
were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission
thereunder (the "1934 Act Regulations") and, when read
together with the other information in the Prospectus, at the
time the Registration Statement became effective and as of
each Representation Date or during the period specified in
Section 3(f), did not and will not include an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
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(5) Each of Price Waterhouse LLP and Ernst & Young
LLP, the accounting firms that certified the financial
statements and supporting schedules included in, or
incorporated by reference into, the Registration Statement and
the Prospectus is an independent public accountant as required
by the 1933 Act and the 1933 Act Regulations.
(6) The consolidated financial statements of the
Company and the Operating Partnership incorporated by
reference into the Registration Statement and the Prospectus,
together with the related schedules and notes, as well as
those financial statements, schedules and notes of any other
entity included therein, present fairly the financial position
of the Company, the Operating Partnership and their
consolidated subsidiaries, or such other entities, as the case
may be, at the respective dates indicated and the statement of
operations, stockholders' equity, partners' equity and cash
flows of the Company, the Operating Partnership and their
consolidated subsidiaries, or such other entities, as the case
may be, for the periods specified. Such financial statements
have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if
any, included in, or incorporated by reference into, the
Registration Statement and the Prospectus present fairly the
information required to be stated therein. The selected
financial data and the summary financial information included
in, or incorporated by reference into, the Prospectus present
fairly the information shown therein and have been compiled on
a basis consistent with that of the audited financial
statements included in, or incorporated by reference into, the
Registration Statement and the Prospectus. The Company's and
the Operating Partnership's ratios of earnings to fixed
charges and preferred stock dividends (actual and, if any, pro
forma) included in the Prospectus under the captions "Ratios
of Earnings to Fixed Charges and Preferred Stock Dividends"
and in Exhibit 12.1 to the Registration Statement have been
calculated in compliance with Item 503(d) of Regulation S-K of
the Commission. In addition, any pro forma financial
statements included in, or incorporated by reference into, the
Registration Statement and the Prospectus comply in all
material respects with the applicable requirements of Rule
11-02 of Regulation S-X of the Commission, and the assumptions
used in the preparation thereof are, in the opinion of the
Company, reasonable and the adjustments used therein are
appropriate to give effect to the transactions and
circumstances referred to therein and have been properly
applied to the historical amounts in the compilation of such
statements. Other than the historical financial statements
(and
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schedules) included therein, no other historical or pro forma
financial statements (or schedules) are required by the 1933
Act or the 1933 Act Regulations to be included in the
Registration Statement.
(7) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, assets, business affairs or
business prospects of the Company, the Operating Partnership
and their Subsidiaries considered as one enterprise (a
"Material Adverse Effect"), whether or not arising in the
ordinary course of business; (B) no casualty loss or
condemnation or other adverse event with respect to any of the
interests held directly or indirectly in any of the real
properties owned, directly or indirectly, by the Company, the
Operating Partnership or their Subsidiaries (the "Properties")
has occurred that is material to the Company, the Operating
Partnership and their Subsidiaries considered as one
enterprise; (C) there have been no transactions entered into
by the Company, the Operating Partnership or any Subsidiary,
other than the merger with Columbus Realty Trust which will
occur on October 24, 1997 (the "Merger") and other than those
arising in the ordinary course of business, which are material
with respect to the Company, the Operating Partnership and
their Subsidiaries considered as one enterprise or that would
result, upon consummation, in any material inaccuracy in the
representations contained in Section 1(a)(6) above; (D)
neither the Company, the Operating Partnership nor any
Subsidiary has incurred any material obligation or liability,
direct, contingent or otherwise; and (E) there has been no
material change in the short-term debt or long-term debt of
the Company or the Operating Partnership.
(8) The Company has been duly organized and is
validly existing as a corporation in good standing under the
Georgia Business Corporation Code with corporate power and
authority to own, lease and operate its properties, to conduct
its business as described in the Prospectus and to enter into
and perform its obligations under this Agreement, the
applicable Terms Agreement, any Deposit Agreement, the Delayed
Delivery Contracts (as defined herein), if any and the other
agreements to which it is a party. Prior to the Merger, the
Company was duly qualified or registered as a foreign
corporation to transact business in the States of Florida,
North Carolina, Tennessee and Texas, and the Commonwealth of
Virginia and the District of Columbia and each other
jurisdiction in which such qualification or registration is
required, whether by reason of the ownership, leasing or
management of property or the conduct of business except
where the failure to so qualify or register would not have a
Material Adverse Effect.
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(9) Post GP Holdings, Inc. has been duly organized
and is validly existing as a corporation in good standing
under the Georgia Business Corporation Code with corporate
power and authority to own, lease and operate its properties,
to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement,
the applicable Terms Agreement, any Deposit Agreement, the
Delayed Delivery Contracts, if any and the other agreements to
which it is a party. Post GP Holdings, Inc. is duly qualified
or registered as a foreign corporation to transact business
and is in good standing in the States of Florida, North
Carolina, Tennessee and Texas and the Commonwealth of Virginia
and each other jurisdiction in which such qualification or
registration is required, whether by reason of the ownership,
leasing or management of property or the conduct of business
except where the failure to so qualify or register would not
have a Material Adverse Effect.
(10) Post LP Holdings, Inc. is a corporation duly
formed and is validly existing and in good standing under the
laws of the State of Georgia. Post LP Holdings, Inc. has the
power and authority to own, lease and operate its properties
and conduct the business in which it is engaged and, to our
knowledge, such corporation is duly qualified as a foreign
corporation in the jurisdictions set forth in an exhibit to
the opinion. All of the issued and outstanding shares of
capital stock of Post LP Holdings, Inc. have been duly
authorized and validly issued and fully paid.
(11) The Operating Partnership has been duly formed
and is validly existing as a limited partnership in good
standing under the Georgia Revised Uniform Limited Partnership
Act (the "Georgia Act") with partnership power and authority
to own, lease and operate its properties, to conduct the
business in which it is engaged and to enter into and perform
its obligations under this Agreement, the Terms Agreement and
the other agreements to which it is a party. The Operating
Partnership is duly qualified or registered as a foreign
partnership and is in good standing in the States of Florida,
North Carolina, Tennessee and Texas and the Commonwealth of
Virginia and each other jurisdiction in which such
qualification or registration is required, whether by reason
of the ownership, leasing or management of property or the
conduct of business, except where the failure to so qualify or
register would not have a Material Adverse Effect.
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(12) Each of the Subsidiaries has been duly formed
and is validly existing and in good standing under the laws of
its jurisdiction of organization with partnership or corporate
power and authority to conduct the business in which it is
engaged and to own, lease and operate its properties as
described in the Prospectus. Each of the Subsidiaries is duly
qualified as a foreign partnership, corporation or other
organization to transact business and is in good standing in
each jurisdiction in which such qualification is required
whether by reason of the ownership or leasing of property, the
management of properties by others or the conduct of business
except where the failure to so qualify or register would not
have a Material Adverse Effect.
(13) The capitalization of the Company is as set
forth in the Prospectus (except for subsequent issuances
thereof, if any, contemplated under this Agreement, pursuant
to employee benefit plans referred to in the Prospectus or
pursuant to the exercise of convertible securities or options
referred to in the Prospectus or pursuant to the Merger). Such
shares of capital stock have been duly authorized and validly
issued by the Company and are fully paid and non-assessable,
and none of such shares of capital stock were issued in
violation of preemptive or other similar rights arising by
operation of law, under the charter and by-laws of the Company
or under any agreement to which the Company, the Operating
Partnership or any of their subsidiaries is a party, or
otherwise.
(14) The capitalization of the Operating Partnership
is as set forth in the Prospectus and all of the outstanding
partnership interests in the Operating Partnership have been
duly authorized and validly issued and the capital
contributions with respect thereto have been made in full; and
the partnership interests owned by the Company are owned in
the percentage amount set forth in the Prospectus free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity except that following the Merger,
the partnership interests of the Operating Partnership will be
owned by Post GP Holdings, Inc. and Post LP Holdings, Inc. The
Company is the sole general partner of the Operating
Partnership, except that following the Merger, the sole
general partner of the Operating Partnership will be Post GP
Holdings, Inc.
(15) All of the issued and outstanding shares of
capital stock and partnership interests, as the case may be,
of each Subsidiary have been validly issued and fully paid and
are owned by the Company, the Operating Partnership, another
Subsidiary, and/or certain affiliated entities as described in
the Registration Statement, in each case free and clear of any
security interest, mortgage, pledge, lien,
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encumbrance, claim or equity, other than the transfer
restrictions set forth in the Option and Transfer Agreement by
and among the Operating Partnership, Post Services, Inc., John
A. Williams and John T. Glover. The Operating Partnership owns
no direct or indirect equity interest in any entity other than
its Subsidiaries.
(16) Except for transactions described in the
Prospectus and transactions in connection with stock and
Operating Partnership interests (the "Unit") option and
dividend reinvestment plans and exchanges of Units, there are
no outstanding securities convertible into or exchangeable for
any capital stock of the Company and no outstanding options,
rights (preemptive or otherwise) or warrants to purchase or to
subscribe for such shares, Units or other securities of the
Company, the Operating Partnership or any of their
subsidiaries.
(17) Each of the Company and the Operating
Partnership has full power and authority to enter into and
perform its obligations under this Agreement, the applicable
Terms Agreement, the Deposit Agreement, if applicable and the
Delayed Delivery Contracts (as defined in Section 2 hereof),
if any and this Agreement has been, and as of each
Representation Date, the applicable Terms Agreement, Deposit
Agreement, if any, and the Delayed Delivery Contracts, if any,
will have been, duly authorized, executed and delivered by
each of the Company and the Operating Partnership and,
assuming due authorization and delivery by the other parties
thereto, each is a valid and binding agreement of the Company
and the Operating Partnership enforceable against the Company
and the Operating Partnership in accordance with its terms,
except as (A) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, (B) the
availability of equitable remedies may be limited by equitable
principles of general applicability, and (C) rights to
indemnity and contribution thereunder may be limited by state
or federal securities laws or the public policy underlying
such laws.
(18) The Common Stock has been, or as of the date of
the applicable Terms Agreement will have been, duly authorized
for issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and delivered as provided herein
and in the applicable Terms Agreement, the Common Stock will
be validly issued, fully paid and non-assessable; the
Preferred Stock has been, or as of the date of the applicable
Terms Agreement will have been, duly authorized and classified
and when Articles of Amendment setting the terms of the
Preferred Stock are duly executed and filed for record with
the Secretary of State of the State of Georgia and the
Preferred Stock
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is duly paid for, sold and issued, and certificates therefor
are duly executed, countersigned and delivered as provided
herein and in the applicable Terms Agreement or any Delayed
Delivery Contract, the Preferred Stock will be validly issued,
fully paid and non-assessable; when Depositary Receipts
evidencing any Depositary Shares are issued and delivered
against deposit of Preferred Stock and against payment for the
Depositary Shares pursuant to this Agreement, the Terms
Agreement relating to the Depositary Shares and the Deposit
Agreement, the Preferred Stock will be validly issued, fully
paid and non-assessable, and the Depositary Receipts will be
legally issued and will entitle the holders thereof to the
rights specified in the Depositary Receipts and the Deposit
Agreement; the Preferred Stock, if applicable, conforms to the
Articles of Amendment; the Underwritten Securities being sold
pursuant to the applicable Terms Agreement conform, in all
material respects, to the descriptions thereof contained in
the Prospectus; and the issuance of the Underwritten
Securities is not subject to preemptive or similar rights.
(19) Before the Closing Time for any Depositary
Shares, the Deposit Agreement will be duly authorized and
executed by the Company, and assuming due authorization,
execution and delivery by the Depositary, the Deposit
Agreement will constitute a valid and legally binding
instrument of the Company enforceable against the Company in
accordance with its terms, except as (A) the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally, (B) the availability of equitable
remedies may be limited by equitable principles of general
applicability, and (C) rights to indemnity and contribution
thereunder may be limited by state or federal securities laws
or the public policy underlying such laws.
(20) If applicable, the Common Stock issuable upon
conversion of any of the Preferred Stock or the Depositary
Shares have been, or as of the date of such Terms Agreement
will have been, duly and validly authorized and reserved for
issuance by the Company upon such conversion by all necessary
action and such shares, when issued upon such conversion, will
be duly and validly issued, fully paid and non-assessable and
the issuance of such shares upon such conversion will not be
subject to preemptive or other similar rights arising by
operation of law, under the charter and by-laws of the Company
or under any agreement to which the Company or any of its
subsidiaries is a party, or otherwise. The Common Stock
issuable upon conversion of any of the Preferred Stock or
Depositary Shares will conform in all material respects to the
descriptions thereof in the Prospectus.
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<PAGE> 12
(21) The Underwritten Securities being sold pursuant
to the applicable Terms Agreement and each applicable Deposit
Agreement, as of the date of the Prospectus, and any
Underlying Securities, when issued and delivered in accordance
with the terms of the related Underwritten Securities, will
conform in all material respects to the statements relating
thereto contained in the Prospectus and will be in
substantially the form filed or incorporated by reference, as
the case may be, as an exhibit to the Registration Statement.
(22) Neither the Company, the Operating Partnership
nor any of their Subsidiaries is in violation of its charter,
by-laws, certificate of limited partnership, partnership
agreement or LLC agreement, as the case may be, or in default
in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which it or any of them is
a party or by which any of them may be bound, or to which any
of their property or assets is subject, except for such
defaults that would not result in a Material Adverse Effect.
The execution, delivery and performance of this Agreement or
the applicable Terms Agreement or any Deposit Agreement and
the transactions contemplated herein or therein including the
issuance, sale and delivery of the Underwritten Securities and
the use of the proceeds from the sale of the Underwritten
Securities as described in the Prospectus under the caption
"Use of Proceeds," and compliance by the Company and the
Operating Partnership with its obligations hereunder and
thereunder (A) do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any assets, properties
or operations of the Company, the Operating Partnership or any
of their Subsidiaries pursuant to, any material contract,
indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the
Company, the Operating Partnership or any of their
Subsidiaries is a party or by which it or any of them may be
bound, or to which any of their properties or assets is
subject, nor (B) will such action result in any violation of
the provisions of the (i) charter, bylaws, LLC agreement or
partnership agreement of the Company, the Operating
Partnership or any Subsidiary, as the case may be, or (ii) any
applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government agency or court,
domestic or foreign, having jurisdiction over the Company, the
Operating Partnership or any Subsidiary or any of their
assets, properties or operations. As used herein, a "Repayment
Event" means any event or condition which gives the
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<PAGE> 13
holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment
of all or a portion of such indebtedness by the Company, the
Operating Partnership or any Subsidiary.
(23) No labor dispute with the employees of the
Company, the Operating Partnership or any Subsidiary exists
or, to the knowledge of the Company and the Operating
Partnership, is imminent, which may result in a Material
Adverse Effect.
(24) There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or
foreign, now pending, or to the knowledge of the Company or
the Operating Partnership threatened, against or affecting the
Company, the Operating Partnership, any Subsidiary thereof,
any Property or any officer or director of the foregoing,
which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein),
or which might result in a Material Adverse Effect, or which
might materially and adversely affect the consummation of this
Agreement or the applicable Terms Agreement or any Deposit
Agreement or the Delayed Delivery Contracts or the
transactions contemplated herein or therein. There is no
pending legal or governmental proceedings to which the
Company, the Operating Partnership or any Subsidiary is a
party or of which any of their respective assets or properties
is subject which might result in a Material Adverse Effect.
(25) There are no contracts or documents of the
Company or the Operating Partnership which are required to be
described in the Registration Statement, the Prospectus or the
documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and/or filed
as required.
(26) No authorization, approval or consent of any
court or governmental authority or agency is necessary or
required for the performance by the Company and the Operating
Partnership of their obligations under this Agreement or the
applicable Terms Agreement or in connection with the
transactions contemplated under this Agreement, such Terms
Agreement or any Deposit Agreement, except such as have been
already obtained or as may be required under the 1933 Act, the
1933 Act Regulations or state securities or real estate
syndication laws.
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<PAGE> 14
(27) The Company, the Operating Partnership and their
Subsidiaries own or possess trademarks, service marks, trade
names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business
now operated by them, and neither the Company, the Operating
Partnership nor any of their Subsidiaries has received any
notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate
to protect the interest of the Company, the Operating
Partnership or any of their Subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would result in a Material Adverse
Effect.
(28) Each of the Company, the Operating Partnership
and their subsidiaries has all permits, licenses, approvals,
consents, certificates and other authorizations of and from
(collectively, "Governmental Licenses") and has made all
declarations and filings with, all appropriate federal, state,
local, foreign and other governmental authorities, all
self-regulatory organizations and all courts and other
tribunals required for it to own, lease, license and use its
properties and assets and to conduct its business in the
manner described in the Registration Statement and the
Prospectus, other than such Governmental Licenses the absence
of which, singly or in the aggregate, could result in a
Material Adverse Effect. Neither the Company, the Operating
Partnership nor any of their Subsidiaries has received any
notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material
Adverse Effect.
(29) (A) The Company and the Operating Partnership
have good and marketable fee simple title to the land
underlying the Properties (or, in the case of the Property
known as "Post Renaissance," a good and marketable leasehold
interest in the land underlying such Property) and good and
marketable title to the improvements thereon and all other
assets that are required for the effective operation of such
Properties in the manner in which they currently are operated,
subject, however, to existing mortgages on such Properties, to
utility easements serving such Properties, to liens of ad
valorem taxes not due and payable as of the Closing Time, to
zoning and similar governmental land use matters affecting
such Properties that are consistent with the current uses of
such Properties, to matters of title not adversely affecting
marketability of title to such Properties, other statutory
liens not due and payable as of the Closing Time, title
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<PAGE> 15
matters that may be material in character, amount or extent
but which do not materially detract from the value, or
interfere with the use of, the Properties or otherwise
materially impair the business operations being conducted or
proposed to be conducted thereon, ownership of cable
television lines and facilities serving one or more of such
Properties by the cable television providers or their
affiliates, service marks and trade names used in connection
with such Properties, and ownership by others of certain items
of equipment and other items of personal property that are not
material to the conduct of business operations at such
Properties; (B) the ground lease under which the Company and
the Operating Partnership lease the land on which the Property
known as "Post Renaissance" is located is in full force and
effect, and the Company and the Operating Partnership are not
in default in respect of any of the terms or provisions of
such lease and the Company and the Operating Partnership have
not received notice of the assertion of any claim by anyone
adverse to the Company's or the Operating Partnership's rights
as lessee under such lease, or affecting or questioning the
Company's or the Operating Partnership's right to the
continued possession or use of the Property under such lease
or of a default under such lease, other than claims which
would not have a Material Adverse Effect; (C) all liens,
charges, encumbrances, claims, or restrictions on or affecting
any of the Properties and the assets of the Company and the
Operating Partnership or any Subsidiary which are required to
be disclosed in the Prospectus are disclosed therein; (D) none
of the Company and the Operating Partnership or any tenant of
any of the Properties is in default under any of the leases
pursuant to which the Company and the Operating Partnership,
as lessor, leases its Property (and the Company and the
Operating Partnership do not know of any event which, but for
the passage of time or the giving of notice, or both, would
constitute a default under any of such leases) other than such
defaults that would not have a Material Adverse Effect; (E) no
person has an option or right of first refusal to purchase all
or part of any Property or any interest therein; (F) each of
the Properties complies with all applicable codes, laws and
regulations (including, without limitation, building and
zoning codes, laws and regulations and laws relating to access
to the Properties), except to the extent disclosed in the
Prospectus and except for such failures to comply that would
not individually or in the aggregate have a Material Adverse
Effect; (G) the Company and the Operating Partnership do not
have knowledge of any pending or threatened condemnation
proceedings, zoning change, or other similar proceeding or
action that will in any manner affect the size of, use of,
improvements on, construction on or access to the Properties,
except such proceedings or actions that would not have a
Material Adverse Effect; and (H) other than with respect to
the
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<PAGE> 16
Property known as "Post Woods," the Company and the Operating
Partnership are the beneficiaries of title insurance on the
Properties in amounts that were commercially reasonable at the
time such policies were issued, and in each case such title
insurance is in full force and effect.
(30) The Company and the Operating Partnership are
not, and upon the issuance and sale of the Underwritten
Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus will not
be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(31) Except as disclosed in the Prospectus, (A) each
Property, including, without limitation, the Environment (as
defined below) at each Property, is free of any Hazardous
Substance (as defined below) in violation of any Environmental
Law (as defined below) applicable to the Properties except for
any Hazardous Substance that would have any Material Adverse
Effect; (B) none of the Company, the Operating Partnership or
any Subsidiary has caused or suffered to occur any Release (as
defined below) of any Hazardous Substance into the Environment
on, in, under or from any Property in violation of any
Environmental Law applicable to such Property, and no
condition exists on, in or under any Property or, to the
knowledge of the Company or the Operating Partnership, any
property adjacent to any Property that could result in the
occurrence of material liabilities under, or any material
violations of, any Environmental Law applicable to such
Property, give rise to the imposition of any Lien (as defined
below) under any Environmental Law, or cause or constitute a
health, safety or environmental hazard to any property, person
or entity; (C) none of the Company, the Operating Partnership
or any Subsidiary is engaged in or intends to engage in any
manufacturing or any similar operations at any Property that
(1) require the use, handling, transportation, storage,
treatment or disposal of any Hazardous Substance (other than
paints, stains, cleaning solvents, insecticides, herbicides,
or other substances that are used in the ordinary course of
operating any Property and in compliance with all applicable
Environmental Laws) or (2) require permits or are otherwise
regulated pursuant to any Environmental Law; (D) none of the
Company, the Operating Partnership or any Subsidiary has
received any notice of a claim under or pursuant to any
Environmental Law applicable to a Property or under common law
pertaining to Hazardous Substances on any Property or
pertaining to other property at which Hazardous Substances
generated at any Property have come to be located; (E) none of
the Company, the Operating Partnership or
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<PAGE> 17
any Subsidiary has received any notice from any Governmental
Authority (as defined below) claiming any violation of any
Environmental Law that is uncured or unremediated as of the
date hereof; and (F) no Property (1) is included or to the
knowledge of the Company, the Operating Partnership or any
Subsidiary, proposed for inclusion on the National Priorities
List issued pursuant to CERCLA (as defined below) by the
United States Environmental Protection Agency (the "EPA") or
on the Comprehensive Environmental Response, Compensation, and
Liability Information System database maintained by the EPA as
a potential CERCLA removal, remedial or response site or (2)
is included or proposed for inclusion on, any similar list of
potentially contaminated sites pursuant to any other
applicable Environmental Law nor has the Company, the
Operating Partnership, or any subsidiary received any written
notice from the EPA or any other Governmental Authority
proposing the inclusion of any Property on such list.
As used herein, "Hazardous Substance" shall include,
without limitation, any hazardous substance, hazardous waste,
toxic or dangerous substance, pollutant, solid waste or
similarly designated materials, including, without limitation,
oil, petroleum, or any petroleum-derived substance or waste,
asbestos or asbestos-containing materials, PCBs, pesticides,
explosives, radioactive materials, dioxins, urea formaldehyde
insulation or any constituent of any such substance, pollutant
or waste, including any such substance, pollutant or waste
identified, listed or regulated under any Environmental Law
(including, without limitation, materials listed in the United
States Department of Transportation Optional Hazardous
Material Table, 49 C.F.R. ss. 172.101, as the same may now or
hereafter be amended, or in the EPA's List of Hazardous
Substances and Reportable Quantities, 40 C.F.R. Part 3202, as
the same may now or hereafter be amended); "Environment" shall
mean any surface water, drinking water, ground water, land
surface, subsurface strata, river sediment, buildings,
structures, and ambient, workplace and indoor air;
"Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act, as amended (42
U.S.C. ss. 9601, et seq.) ("CERCLA"), the Resource
Conservation Recovery Act, as amended (42 U.S.C. ss. 6901, et
seq.), the Clean Air Act, as amended (42 U.S.C. ss. 7401, et
seq.), the Clean Water Act, as amended (33 U.S.C. ss. 1251, et
seq.), the Occupational Safety and Health Act of 1970, as
amended (15 U.S.C. ss. 2601, et seq.), the Toxic Substances
Control Act, as amended (29 U.S.C. ss. 651, et seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C.
ss. 1801, et seq.), together with all rules, regulations and
orders promulgated thereunder and all other federal, state and
local laws, ordinances, rules, regulations and orders relating
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<PAGE> 18
to the protection of the environment or of human health from
environmental effects; "Governmental Authority" shall mean any
federal, state or local governmental office, agency or
authority having the duty or authority to promulgate,
implement or enforce any Environmental Law; "Lien" shall mean,
with respect to any Property, any material mortgage, deed of
trust, pledge, security interest, lien, encumbrance, penalty,
fine, charge, assessment, judgment or other liability in, on
or affecting such Property; and "Release" shall mean any
spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, emanating
or disposing of any Hazardous Substance into the Environment,
including, without limitation, the abandonment or discard of
barrels, containers, tanks (including, without limitation,
underground storage tanks) or other receptacles containing or
previously containing any Hazardous Substance or any release,
emission, discharge or similar term, as those terms are
defined or used in any Environmental Law.
(32) Each of the Company, the Operating Partnership
and their Subsidiaries is insured by insurers of recognized
financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in
which they are engaged.
(33) The Company was organized and has operated in
conformity with the requirements for qualification and
taxation as a REIT for each of its taxable years beginning
with the taxable year ended December 31, 1993, and, after
giving effect to the Merger, its current organization and
method of operation should enable it to continue to meet the
requirements for qualification and taxation as a REIT.
(34) The Operating Partnership and each of the
Subsidiary Partnerships are properly classified as
partnerships, and not as corporations or as associations
taxable as corporations, for Federal income tax purposes
throughout the period from July 22, 1993 through the date
hereof, or, in the case of any Subsidiary Partnerships that
have terminated, through the date of termination of such
Subsidiary Partnerships.
(35) Each of the Company, the Operating Partnership
and their Subsidiaries has filed all federal, state, local and
foreign income tax returns which have been required to be
filed (except in any case in which the failure to file would
not have a Material Adverse Effect) and has paid all taxes
required to be paid and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing is
due and payable, except in all cases for any such tax,
assessment, fine or penalty that is being contested in good
faith.
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<PAGE> 19
(36) The Common Stock will be listed on the New York
Stock Exchange on the applicable Representation Date and at
the applicable Closing Time. If so stated in the applicable
Prospectus Supplement, as of the applicable Representation
Date, the Preferred Stock will have been approved for listing
on the New York Stock Exchange upon official notice of
issuance.
(37) Unless otherwise agreed by you, the Preferred
Stock will have an investment grade rating from one or more
nationally recognized statistical rating organizations at the
Representation Date and at the applicable Closing Time.
(b) Any certificate signed by any officer of the Company, the
Operating Partnership or any Subsidiary and delivered to you or to counsel for
the Underwriters in connection with the offering of the Underwritten Securities
shall be deemed a representation and warranty by the Company and the Operating
Partnership to each Underwriter as to the matters covered thereby on the date of
such certificate and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) The several commitments of the Underwriters to purchase
the Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions set forth
herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company may grant, if so provided in the applicable Terms Agreement
relating to the Initial Underwritten Securities, an option to the Underwriters
named in such Terms Agreement, severally and not jointly, to purchase up to the
number of the Option Underwritten Securities set forth therein at a price per
Option Underwritten Security equal to the price per Initial Underwritten
Security, less an amount equal to any dividends or distributions declared by the
Company or the Operating Partnership and paid or payable on the Initial
Underwritten Securities but not payable on the Option Underwritten Securities.
Such option, if granted, will expire 30 days or such lesser number of days as
may be specified in the applicable Terms Agreement after the Representation Date
relating to the Initial Underwritten Securities, and may be exercised in whole
or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Initial Underwritten Securities upon notice
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<PAGE> 20
by you to the Company setting forth the number of Option Underwritten Securities
as to which the several Underwriters are then exercising the option and the
time, date and place of payment and delivery for such Option Underwritten
Securities. Any such time and date of payment and delivery (each, a "Date of
Delivery") shall be determined by you, but shall not be later than seven full
business days and not be earlier than two full business days after the exercise
of said option, unless otherwise agreed upon by you and the Company. If the
option is exercised as to all or any portion of the Option Underwritten
Securities, each of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total number of Option Underwritten Securities
then being purchased which the number of Initial Underwritten Securities each
such Underwriter has severally agreed to purchase as set forth in such Terms
Agreement bears to the total number of Initial Underwritten Securities, subject
to such adjustments as you in your discretion shall make to eliminate any sales
or purchases of a fractional number of Option Underwritten Securities.
(c) Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities to be purchased by the Underwriters shall be
made at the offices of Hogan & Hartson L.L.P., 555 Thirteenth Street, N.W.,
Washington, D.C. 20004, or at such other place as shall be agreed upon by you
and the Company, at 9:00 a.m. (Eastern time) on the fourth business day (or the
third business day if required under Rule 15c6-1 of the 1934 Act, or unless
postponed in accordance with the provisions of Section 10) following the date of
the applicable Terms Agreement, or such other time as shall be agreed upon by
you and the Company (each such time and date of payment and delivery being
herein called a "Closing Time"). In addition, in the event that the Underwriters
have exercised their option, if any, to purchase any or all of the Option
Underwritten Securities, payment of the purchase price for, and delivery of such
Option Underwritten Securities, shall be made at the above-mentioned offices of
Hogan & Hartson L.L.P., or at such other place as shall be agreed upon by you
and the Company, on the relevant Date of Delivery as specified in the notice
from you to the Company or the Operating Partnership.
Payment shall be made to the Company by wire transfer or by
certified or official bank check or checks drawn in Federal or similar same-day
funds payable to the order of the Company against delivery to you for the
respective accounts of the Underwriters of the Underwritten Securities to be
purchased by them. It is understood that each Underwriter has authorized you,
for its account, to accept delivery of, receipt for, and make payment of the
purchase price, for the Underwritten Securities which it has severally agreed to
purchase. You, individually and not as representative of the Underwriters, may
(but shall not be obligated to) make payment of the purchase price for the
Underwritten Securities to be purchased by any Underwriter whose check has not
been received by the Closing Time or the relevant Date of Delivery, as the case
may be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
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<PAGE> 21
(d) The Underwritten Securities, or, if applicable, Depositary Receipts
evidencing the Depositary Shares, shall be in such authorized denominations and
registered in such names as you may request in writing at least two full
business days prior to the applicable Closing Time or the relevant Date of
Delivery, as the case may be. The Underwritten Securities will be made available
for examination and packaging by you on or before the first business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be.
If authorized by the applicable Terms Agreement, the Underwriters named
therein may solicit offers to purchase Underwritten Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto with such changes therein as the
Company may approve. As compensation for arranging Delayed Delivery Contracts,
the Company will pay to you at Closing Time, for the respective accounts of the
Underwriters, a fee specified in the applicable Terms Agreement for each of the
Underwritten Securities for which Delayed Delivery Contracts are made at the
applicable Closing Time as is specified in the applicable Terms Agreement. Any
Delayed Delivery Contracts are to be with institutional investors of the types
described in the Prospectus. At the applicable Closing Time, the Company will
enter into Delayed Delivery Contracts (for not less than the minimum number of
Underwritten Securities per Delayed Delivery Contract specified in the
applicable Terms Agreement) with all purchasers proposed by the Underwriters and
previously approved by the Company as provided below, but not for an aggregate
number of Underwritten Securities in excess of that specified in the applicable
Terms Agreement. The Underwriters will not have any responsibility for the
validity or performance of Delayed Delivery Contracts.
You shall submit to the Company, at least three business days prior to
the applicable Closing Time, the names of any institutional investors with which
it is proposed that the Company will enter into Delayed Delivery Contracts and
the number of Underwritten Securities to be purchased by each of them, and the
Company will advise you, at least two business days prior to the applicable
Closing Time, of the names of the institutions with which the making of Delayed
Delivery Contracts is approved by the Company and the number of Underwritten
Securities to be covered by each such Delayed Delivery Contract.
The number of Underwritten Securities agreed to be purchased by the
several Underwriters pursuant to the applicable Terms Agreement shall be reduced
by the number of Underwritten Securities covered by Delayed Delivery Contracts,
as to each Underwriter as set forth in a written notice delivered by you to the
Company; provided, however, that the total number of Underwritten Securities to
be purchased by all Underwriters shall be the total number of Underwritten
Securities covered by the applicable Terms Agreement, less the number of
Underwritten Securities covered by Delayed Delivery Contracts.
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<PAGE> 22
SECTION 3. Covenants of the Company and the Operating
Partnership. Each of the Company and the Operating Partnership covenants with
you and with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) In respect of each offering of Underwritten
Securities, the Company will prepare a Prospectus Supplement
setting forth the number of Underwritten Securities covered
thereby and their terms not otherwise specified in the
Prospectus pursuant to which the Underwritten Securities are
being issued, the names of the Underwriters participating in
the offering and the number of Underwritten Securities which
each severally has agreed to purchase, the names of the
Underwriters acting as co-managers in connection with the
offering, the price at which the Underwritten Securities are
to be purchased by the Underwriters from the Company, the
initial public offering price, if any, the selling concession
and reallowance, if any, any delayed delivery arrangements,
and such other information as you and the Company deem
appropriate in connection with the offering of the
Underwritten Securities; and the Company will promptly
transmit copies of the Prospectus Supplement to the Commission
for filing pursuant to Rule 424(b) of the 1933 Act Regulations
within the time period required by such Rule and will furnish
to the Underwriters named therein as many copies of the
Prospectus and such Prospectus Supplement as you shall
reasonably request. If, at the time that the Registration
Statement became effective, any information shall have been
omitted therefrom in reliance upon Rule 430A of the 1933 Act
Regulations, then immediately following execution of the
applicable Terms Agreement, the Company will prepare, and file
or transmit for filing with the Commission in accordance with
such Rule 430A and Rule 424(b) of the 1933 Act Regulations,
copies of an amended Prospectus or, if required by such Rule
430A, a post-effective amendment to the Registration Statement
(including an amended Prospectus), including all information
so omitted.
(b) The Company will notify you immediately, and
confirm such notice in writing, of (i) the effectiveness of
any amendment to the Registration Statement, (ii) the
transmittal to the Commission for filing of any Prospectus
Supplement or other supplement or amendment to the Prospectus
or any document to be filed pursuant to the 1934 Act, (iii)
the receipt of any comments from the Commission, (iv) any
request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (v) the issuance
by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order
preventing or suspending the
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<PAGE> 23
use of any preliminary prospectus, or of the suspension of the
qualification of the Underwritten Securities or offering or
sale in any jurisdiction, or of any proceedings for any of
such purposes; and the Company will make every reasonable
effort to prevent the issuance of any such stop order and, if
any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(c) At any time when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection
with sales of the Underwritten Securities, the Company will
give you notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing
under Rule 462(b) of the 1933 Act Regulations), any Term Sheet
or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time
it became effective or to the Prospectus, whether pursuant to
the 1933 Act, the 1934 Act or otherwise, and will furnish you
with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which you or counsel
for the Underwriters shall object.
(d) The Company has furnished or will deliver to you
and counsel for the Underwriters, without charge, as many
signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference
therein) and copies of all consents and certificates of
experts, and will also deliver to you without charge, as many
conformed copies of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) as you
may reasonably request. The copies of the Registration
Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(e) The Company will deliver to each Underwriter,
without charge, as many copies of each preliminary prospectus
as such Underwriter may reasonably request, and the Company
and the Operating Partnership hereby consent to the use of
such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge,
during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus as such Underwriter may reasonably
request. If applicable, the Prospectus and any amendments or
supplements thereto furnished to the Underwriters
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will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to
the extent permitted by Regulation S-T.
(f) The Company will comply with the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so
as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Agreement and
the applicable Terms Agreement and in the Registration
Statement and the Prospectus. If at any time when the
Prospectus is required by the 1933 Act or the 1934 Act to be
delivered in connection with sales of the Underwritten
Securities, any event shall occur or condition shall exist as
a result of which it is necessary, in the reasonable opinion
of counsel for the Underwriters or for the Company, to amend
or supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements therein, in light of the circumstances existing at
the time it is delivered to a purchaser, not misleading, or if
it shall be necessary, in the reasonable opinion of either of
such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act
Regulations, then the Company will promptly prepare and file
with the Commission such amendment or supplement in form and
substance reasonably satisfactory to counsel for the
Underwriters, whether by filing documents pursuant to the 1933
Act, the 1934 Act, or otherwise, as may be necessary to
correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and
the Company will furnish to the Underwriters, without charge,
such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(g) The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Underwritten
Securities and any related Underlying Securities for offering
and sale under the applicable securities laws and real estate
syndication laws of such states and other jurisdictions
(domestic or foreign) as you may designate and to maintain
such qualifications in effect; provided, however, that the
Company shall not be obligated to file any general consent
service of process or to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect to doing business in any
jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Underwritten Securities or any
related Underlying Securities have been so qualified, the
Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such
qualification in effect
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<PAGE> 25
for so long as may be required for the distribution of the
Underwritten Securities or any related Underlying Securities.
(h) With respect to each sale of Underwritten
Securities, the Company and the Operating Partnership will
make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the
period covered thereby, an earning statement (in form
complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering a 12-month period beginning not later
than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in such Rule 158)
of the Registration Statement.
(i) If the applicable Terms Agreement specifies that
any related Underlying Securities include Common Stock or
Preferred Stock, the Company shall reserve and keep available
at all times, free of preemptive or other similar rights, a
sufficient number of shares of Common Stock and/or Preferred
Stock, as applicable, for the purpose of enabling the Company
to satisfy any obligations to issue such Underlying Securities
upon conversion of the Preferred Stock or Depositary Shares,
as applicable.
(j) The Company will use the net proceeds received by
it from the sale of the Underwritten Securities in the manner
specified in the Prospectus under "Use of Proceeds."
(k) The Company will file with the New York Stock
Exchange, Inc. all documents and notices required by the New
York Stock Exchange, Inc. of companies that have securities
listed in such exchange and, to the extent the Preferred Stock
or Common Stock are listed on the New York Stock Exchange,
Inc., the Company will use its best efforts to maintain the
listing of any such Underwritten Securities on the New York
Stock Exchange, Inc.
(l) The Company and the Operating Partnership will
not, between the date of the applicable Terms Agreement and
the termination of any trading restrictions or the applicable
Closing Time, whichever is later, with respect to the
Underwritten Securities covered thereby, without your prior
written consent, offer or sell, grant any option for the sale
of, or enter into any agreement to sell, any securities of the
same class or series or ranking on a parity with such
Underwritten Securities (other than the Underwritten
Securities which are to be sold pursuant to such Terms
Agreement) or, if such Terms Agreement relates to Underwritten
Securities that are convertible into Common Stock, any Common
Stock or any security convertible into Common Stock (except
for Common Stock issued
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<PAGE> 26
pursuant to reservations, agreements, employee benefit plans,
dividend reinvestment plans, or employee and trustee share
options plans), except as may otherwise be provided in the
applicable Terms Agreement.
(m) The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, will file all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15 of the
1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
(n) On or prior to the Closing Time, the Company will
cause Articles of Amendment relating to the Preferred Stock or
Preferred Stock represented by Depositary Shares, if any, to
be filed with the Secretary of State of the State of Georgia
in accordance with the Georgia Business Corporation Code.
(o) The Company will continue to elect to qualify as
a "real estate investment trust" under the Code, and will use
its best efforts to meet the requirements to continue to
qualify as a "real estate investment trust" under the Code.
(p) If requested by you, the Company will use its
best efforts to cause each of the executive officers and
directors of the Company to enter into lock-up agreements in
form and substance satisfactory to the Underwriters, and the
Company acknowledges that the Underwriters are intended third
party beneficiaries of such agreements.
(q) Except for the authorization of actions permitted
to be taken by the Underwriters as contemplated herein or in
the Prospectus, the Company will not (i) take, directly or
indirectly, any action designed to cause or to result in, or
that might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the
Underwritten Securities, (ii) sell, bid for or purchase the
Underwritten Securities or pay any person any compensation for
soliciting purchases of the Underwritten Securities or (iii)
pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the
Company.
(r) From the date hereof until five years after the
Closing Time, the Company and the Operating Partnership shall
furnish to you and your counsel, promptly upon their becoming
available, copies of any document filed with the Commission
pursuant to Section 13, 14 or 15 of the 1934 Act or any
securities exchange.
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SECTION 4. Payment of Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement or
the applicable Terms Agreement or any Deposit Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation and delivery to the Underwriters of this
Agreement, any Terms Agreement, any Agreement among Underwriters, any Deposit
Agreement, and such other documents as may be required in connection with the
offering, purchase, sale and delivery of the Underwritten Securities or any
related Underlying Securities to the Underwriters, (iii) the preparation,
issuance and delivery of the Underwritten Securities and any related Underlying
Securities, any certificates for the Underwritten Securities or such Underlying
Securities or Depositary Receipts evidencing the Depositary Shares, as
applicable, to the Underwriters, including capital duties, stamp duties, and
stock transfer taxes, if any, (iv) the reasonable fees and disbursements of the
Company's counsel, accountants and other advisors or agents (including transfer
agents and registrars), (v) the qualification of the Underwritten Securities and
any related Underlying Securities under state securities laws and real estate
syndication laws in accordance with the provisions of Section 3(g) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
and delivery of the Blue Sky Memorandum and any amendment thereto, (vi) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus, any Term Sheet, and the Prospectus and any amendments or supplements
thereto, (vii) any fees charged by nationally recognized statistical rating
organizations for the rating of the Underwritten Securities and any related
Underlying Securities, if applicable, (viii) the fees and expenses incurred with
respect to the listing of the Underwritten Securities and any related Underlying
Securities, if applicable, on any national securities exchange, (ix) the filing
fees incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review, if any, by the National Association
of Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Underwritten Securities and any related Underlying Securities, (x) the fees and
expenses of any Underwriter acting in the capacity of a "qualified independent
underwriter" (as defined in Section 2710(c)(8) of the Conduct Rules of the
NASD), if applicable, (xi) the costs and expenses of the deposit of Preferred
Stock under any Deposit Agreement in exchange for Depositary Receipts, including
the charges of the Depositary in connection therewith and (xii) the fees and
expenses of the Depositary, including the fees and disbursements of counsel for
the Depositary.
If the applicable Terms Agreement is terminated by you in
accordance with the provisions of Section 5 or Section 9(b)(i) hereof, the
Company shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
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<PAGE> 28
SECTION 5. Conditions of Underwriters' Obligations. The
several obligations of the Underwriters to purchase and pay for the Underwritten
Securities pursuant to the applicable Terms Agreement are subject to the
accuracy as of the date hereof and of Closing Time of the representations and
warranties of the Company and the Operating Partnership contained herein, to the
accuracy of the statements of officers of the Company, the Operating Partnership
or any Subsidiary made in any certificate delivered pursuant to the provisions
hereof, to the performance by the Company and the Operating Partnership of all
of their covenants and other obligations hereunder, and to the following further
conditions:
(a) The Registration Statement, including any Rule
462(b) Registration Statement, shall have become effective under the
1933 Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall
have been complied with to the reasonable satisfaction of counsel to
the Underwriters; (ii) a prospectus containing information relating to
the description of the Underwritten Securities and any related
Underlying Securities, the specific method of distribution and similar
matters shall have been filed within the prescribed time period, and
prior to the applicable Closing Time with the Commission in accordance
with Rule 424(b) (or any required post-effective amendment providing
such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A), or, if the Company has
elected to rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet
including the Rule 434 information shall have been filed with the
Commission in accordance with Rule 424(b)(7); (iii) the rating assigned
by any nationally recognized statistical rating organization to any
Preferred Stock of the Company or debt securities of the Operating
Partnership as of the date of the applicable Terms Agreement shall not
have been lowered since such date nor shall any such rating
organization have publicly announced that it has placed any Preferred
Stock of the Company or debt securities of the Operating Partnership on
what is commonly termed a "watch list" for possible downgrading; and
(iv) there shall not have come to your attention any facts that would
cause you to believe that the Prospectus, together with the applicable
Prospectus Supplement, at the time it was required to be delivered to
purchasers of the Underwritten Securities, included an untrue statement
of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances
existing at such time, not misleading.
(b) At Closing Time, the Representatives shall have
received the opinion, dated as of the applicable Closing Time, of King
& Spalding, counsel for the Company, in form and substance satisfactory
to counsel for
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<PAGE> 29
the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters, to the effect that:
(i) The Company is a corporation duly
formed and is validly existing and in good standing under the
laws of the State of Georgia. The Company has the power and
authority to own, lease and operate its properties and conduct
the business in which it is engaged.
(ii) Post GP Holdings, Inc. is a
corporation duly formed and is validly existing and in good
standing under the laws of the State of Georgia. Post GP
Holdings, Inc. has the power and authority to own, lease and
operate its properties and conduct the business in which it is
engaged and, to our knowledge, such corporation is duly
qualified as a foreign corporation in the jurisdictions set
forth in an exhibit to the opinion. All of the issued and
outstanding shares of capital stock of Post GP Holdings, Inc.
have been duly authorized and validly issued and fully paid.
(iii) Post LP Holdings, Inc. is a
corporation duly formed and is validly existing and in good
standing under the laws of the State of Georgia. Post LP
Holdings, Inc. has the power and authority to own, lease and
operate its properties and conduct the business in which it is
engaged and, to our knowledge, such corporation is duly
qualified as a foreign corporation in the jurisdictions set
forth in an exhibit to the opinion. All of the issued and
outstanding shares of capital stock of Post LP Holdings, Inc.
have been duly authorized and validly issued and fully paid.
(iv) The Operating Partnership has been
duly formed and is validly existing as a limited partnership
under the Georgia Act. The Operating Partnership has
partnership power and authority to own, lease and operate its
properties and to conduct the business in which it is engaged
and, to counsel's knowledge, is duly qualified as a foreign
partnership in the jurisdictions set forth in an Exhibit to
the opinion. All of the issued and outstanding interests in
the Operating Partnership have been duly authorized and
validly issued and fully paid.
(v) Each of the Post Services, Inc.,
Post Asset Management, Inc., Post Landscape Services, Inc. and
RAM Partners, Inc. (the "Significant Subsidiaries") has been
duly incorporated and is validly existing and in good standing
under the laws of the jurisdiction of its incorporation. Each
of the Significant Subsidiaries has the power and authority to
own, lease and operate its properties and to conduct the
business in which it is engaged, and, to counsel's knowledge,
is
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<PAGE> 30
duly qualified as a foreign corporation or partnership in the
jurisdictions set forth in an exhibit to the opinion. All of
the issued and outstanding shares of capital stock, LLC
interests and partnership interests of each Significant
Subsidiary have been duly authorized and validly issued, are
fully paid and are owned, to such counsel's knowledge, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity, other than the transfer
restrictions set forth in the Option and Transfer Agreement by
and among the Operating Partnership, Post Services, Inc., John
A. Williams and John T. Glover. The ownership of the shares of
capital stock of Post Services, Inc. is as described in the
Prospectus. All of the issued and outstanding shares of
capital stock of each of the other Significant Subsidiaries
are owned by Post Services Inc.
(vi) The Underwritten Securities and, if
applicable, the deposit of the Preferred Stock in accordance
with the provisions of a Deposit Agreement, have been duly and
validly authorized by all necessary action, and when executed,
authenticated and delivered in accordance with this Agreement
against payment of the consideration set forth in the
applicable Terms Agreement or the Delayed Delivery Contracts,
if any, will be validly issued, fully paid and non-assessable
and will be valid and legally binding obligations of the
Company, enforceable against the Company in accordance with
their terms. The terms of the Underwritten Securities being
sold pursuant to the applicable Terms Agreement conform in all
material respects to the description of the Underwritten
Securities set forth under "Description of Common Stock" in
the Prospectus and under "Description of Common Stock,"
"Description of Preferred Stock," "Description of Depositary
Shares," or other similar caption, as the case may be, in the
Prospectus Supplement. The issuance of the Underwritten
Securities is not subject to any statutory preemptive rights
or, to counsel's knowledge, any contractual rights to
subscribe for more shares. If applicable, the form of
certificate used to evidence the Underwritten Securities
complies with all applicable statutory requirements.
(vii) If applicable, the Common Stock
issuable upon conversion of any of the Preferred Stock or
Depositary Shares have been duly authorized and reserved for
issuance upon such conversion by all necessary action and such
shares, when issued upon such conversion will be validly
issued and will be fully paid and non-assessable, and the
issuance of such shares upon such conversion will not be
subject to any statutory preemptive rights or, to counsel's
knowledge, any contractual rights to subscribe for more
shares; and the Common Stock issuable upon conversion of the
Preferred Stock or
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<PAGE> 31
the Depositary Shares conform in all material respects to the
descriptions thereof in the Prospectus.
(viii) The applicable Deposit Agreement,
if any, has been duly authorized, executed and delivered by
the Company and (assuming due authorization, execution and
delivery of the Deposit Agreement by the Depositary)
constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms except as (A) the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, (B) the availability of
equitable remedies may be limited by equitable principles of
general applicability, and (C) rights to indemnity and
contribution thereunder may be limited by state or federal
securities laws or the public policy underlying such laws; and
the Deposit Agreement, if any, conforms in all material
respects to all statements relating thereto contained in the
Prospectus.
(ix) Each of this Agreement, the
applicable Terms Agreement and the Delayed Delivery Contracts,
if any, has been duly and validly authorized, executed and
delivered by the Company and the Operating Partnership, and
each of the Company and the Operating Partnership has the
power and authority to perform its obligations hereunder and
thereunder.
(x) The execution and delivery of this
Agreement and the applicable Terms Agreement by each of the
Company and the Operating Partnership, and the performance by
each of the Company and the Operating Partnership of its
obligations hereunder and thereunder and the consummation of
the transactions contemplated hereunder and thereunder, did
not, do not and will not conflict with or constitute a breach
or violation of, or default under: (1) to the knowledge of
counsel, any material contract, indenture, mortgage, loan
agreement, note, lease, joint venture or partnership agreement
or other material instrument or agreement to which the
Operating Partnership is a party or by which it or any of its
respective properties or other assets or any Property may be
bound or subject; (2) the certificate of limited partnership
or partnership agreement of the Operating Partnership; or (3)
any applicable law, rule, order, administrative regulation or
administrative or court decree, except that no opinion is
expressed under this clause (3) as to this Agreement or the
Terms Agreement with respect to federal, state or foreign
securities laws.
(xi) The Registration Statement is
effective under the 1933 Act and, to counsel's knowledge based
solely on telephonic
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<PAGE> 32
confirmation from the staff of the Commission, no stop order
suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act and no proceedings for that
purpose have been initiated or threatened by the Commission.
(xii) No consent, approval, authorization
or order of, or qualification with, any governmental body or
agency and no consent, approval, or authorization of any
person other than the Company and the Operating Partnership is
required for the performance by each of the Company and the
Operating Partnership of its obligations under this Agreement
and the applicable Terms Agreement, except such as may be
required under the 1933 Act and the securities, Blue Sky or
real estate syndication laws of various states in connection
with the offer and sale of the Underwritten Securities.
(xiii) To the knowledge of counsel, there
is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending
or threatened against or affecting the Company, the Operating
Partnership, any Subsidiary or any material property of the
Company that is required to be disclosed in the Registration
Statement (other than as disclosed therein) or that, if
determined adversely to the Company, the Operating
Partnership, any Subsidiary or any property could reasonably
be expected to materially and adversely affect the
consummation of the transactions contemplated by this
Agreement. To the knowledge of counsel, there are no contracts
or documents of the Company, the Operating Partnership or any
Subsidiary which are required by the 1933 Act, or by the 1933
Act Regulations, the 1934 Act, or the 1934 Act Regulations to
be filed as exhibits to the Registration Statement, the
Prospectus or the documents incorporated by reference which
have not been so filed as exhibits as required.
(xiv) None of the Company, the Operating
Partnership or any Subsidiary is required to be registered as
an investment company under the 1940 Act.
(xv) The information (A) in the
Prospectus under the heading "Description of Common Stock,"
"Description of Preferred Stock" and "Description of
Depository Shares" and (B) the discussion in the Prospectus
under the heading "Federal Income Tax Considerations" and in
the Prospectus Supplement under the headings "Taxation of
Common Stock Holders," "Taxation of Holders of Preferred
Stock," or other similar caption, as the case may be, to the
extent that it constitutes matters of law or legal conclusions
has been
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<PAGE> 33
reviewed by such counsel, is correct and presents fairly the
information to be disclosed therein.
(xvi) At the time the Registration
Statement became effective and at the Representation Date, the
Registration Statement and Prospectus (except for financial
statements and schedules included therein, as to which such
counsel need not express any opinion), excluding the documents
incorporated by reference therein complied as to form in all
material respects with the requirements of the 1933 Act and
the 1933 Act Regulations.
(xvii) Each document heretofore filed
pursuant to the 1934 Act and incorporated or deemed to be
incorporated by reference in the Prospectus (except for
financial statements and schedules and other financial
information included or incorporated by reference therein, as
to which such counsel need not express any opinion) complied
as to form in all material respects with the requirements of
the 1934 Act and the applicable 1934 Act Regulations in effect
at the date of their respective filings.
(xviii) The Company was organized and has
operated in conformity with the requirements for qualification
and taxation as a REIT for each of its taxable years beginning
with the taxable year ended December 31, 1993, and, after
giving effect to the Merger, its current organization and
method of operation should enable it to continue to meet the
requirements for qualification as a REIT.
(xix) The Operating Partnership and each
of the Subsidiary Partnerships are properly classified as
partnerships, and not as corporations or as associations
taxable as corporations, for Federal income tax purposes
throughout the period from July 22, 1993 through the date
hereof, or, in the case of any Subsidiary Partnership that
have terminated, through the date of termination of such
Subsidiary Partnerships.
(xx) To the knowledge of counsel, except
as described in the Prospectus or in connection with the
Merger, there are no outstanding rights, warrants or options
to acquire, or instruments convertible into or exchangeable
for, or agreements or understandings with respect to the sale
or issuance of any shares of Common Stock or capital stock of
or other equity interest in the Company or any subsidiary of
the Company.
(xxi) The Articles of Amendment relating
to the Preferred Stock and the Depositary Shares, if any, have
been filed
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<PAGE> 34
with the Secretary of State of the State of Georgia pursuant
to the Georgia Business Corporation Code and the number of
Preferred Stock and the title, par value, liquidation
preference, ranking, dividend rate or rates (or method of
calculation), dividend payment dates, redemption or sinking
fund requirements, conversion provisions and other terms of
the Preferred Stock have been set forth therein.
(xxii) The First Amendment to the Second Amended
and Restated Agreement of Limited Partnership of the Operating
Partnership, dated as of October 28, 1997, by and among the
Post GP Holdings, Inc., as the general partner, and the
limited partners of the Operating Partnership (the
"Partnership Agreement Amendment") has been duly authorized,
executed and delivered by the parties thereto and is a valid
and binding agreement of the parties thereto, enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer,
or similar laws affecting creditors' rights generally from
time to time in effect and general principles of equity
(regardless of whether such enforceability is considered in a
proceeding at law or in equity). The Series B Preferred
Partnership Units (as defined in the Partnership Agreement
Amendment) have been duly authorized for issuance by all
necessary partnership action and, when issued and delivered
against payment therefor in accordance with the Partnership
Agreement Amendment, will be validly issued, fully paid and
non-assessable. The issuance of the Series B Preferred
Partnership Units is not subject to any statutory or, to our
knowledge, contractual preemptive rights.
(c) At Closing Time, you shall have received the
favorable opinion, dated as of the applicable Closing Time, of Hogan &
Hartson L.L.P., counsel for the Underwriters, with respect to the
matters set forth in (i) (first sentence only), (ii) (first sentence
only), (iv) (first sentence only), (vi), (vii), (ix), (xi), (xv)(A)
and (xvi) of Section 5(b) above.
(d) In rendering their opinions required by Sections
5(b) and (c), respectively, King & Spalding and Hogan & Hartson L.L.P.
shall each additionally state (which shall not constitute an opinion)
that no facts have come to the attention of such counsel which cause
them to believe that the Registration Statement or any amendment
thereto (except for financial statements and supporting schedules and
other financial information and data included therein or omitted
therefrom, as to which such counsel need not express any view), as of
the time it became effective under the 1933 Act (and as of the time of
filing of the Company's Annual Report on Form 10-K, if filed subsequent
to the time of effectiveness) or at the date of the applicable Terms
Agreement, contained an untrue statement of a material fact or
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<PAGE> 35
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus or any amendment or supplement thereto (except as aforesaid)
as of the date of the applicable Terms Agreement or at the applicable
Closing Time, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In giving their opinions required by Sections 5(b)
and 5(c), such counsel (A) may rely as to all matters of fact, upon
certificates and written statements of officers and employees of and
accountants for the Company and (B) may rely as to the qualification
and good standing of each of the Company, the Operating Partnership or
any of the Subsidiaries to do business in any state or jurisdiction,
upon certificates of appropriate government officials or opinions of
counsel in such jurisdictions, which opinions shall be in form and
substance satisfactory to counsel for the Underwriters. In giving their
belief required in this Section 5(d), such counsel may state that their
belief is based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments and
supplements thereto and review and discussion of the contents thereof.
(e) At Closing Time, there shall not have been, since
the date of the applicable Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any Material
Adverse Effect whether or not arising in the ordinary course of
business, and you shall have received a certificate of the President or
a Vice President of the Company and the Operating Partnership, and the
chief financial officer or chief accounting officer of the Company,
dated as of the Closing Time, to the effect that (i) there has been no
such Material Adverse Effect, (ii) the representations and warranties
in Section 1 are true and correct with the same force and effect as
though expressly made at and as of the Closing Time, (iii) the Company
and the Operating Partnership have complied with all agreements and
satisfied all conditions on their part to be performed or satisfied at
or prior to the Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the
Commission.
(f) At the time of the execution of the applicable
Terms Agreement, you shall have received from Price Waterhouse LLP a
letter dated such date, in form and substance satisfactory to you
together with signed or reproduced copies of such letter for each of
the other Underwriters, to the effect that: (i) they are independent
accountants with respect to the Company, the Operating Partnership and
their subsidiaries within the
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meaning of the 1933 Act and the 1933 Act Regulations; (ii) it is their
opinion that the consolidated financial statements and supporting
schedules included or incorporated by reference in the Registration
Statement and the Prospectus and covered by their opinions therein
comply in form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations; (iii) based
upon limited procedures set forth in detail in such letter (which shall
include, without limitation, the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim Financial
Information, with respect to the unaudited financial statements of the
Company and the Operating Partnership included or incorporated by
reference in the Registration Statement), nothing has come to their
attention which causes them to believe that (A) any material
modifications should be made to the unaudited condensed financial
statements included or incorporated by reference in the Registration
Statement for them to be in conformity with GAAP or (B) the unaudited
condensed financial statements included or incorporated by reference in
the Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the 1934 Act as
it applies to Form 10-Q and the related published rules and regulations
or (C) at a specified date not more than five days prior to the date of
the applicable Terms Agreement, there has been any change in the Common
Stock of the Company or partnership interests in the Operating
Partnership or in the consolidated long term debt of the Company and
the Operating Partnership or any decrease in the net assets of the
Company, as compared with the amounts shown in the most recent
consolidated balance sheet included or incorporated by reference in the
Registration Statement and the Prospectus or, during the period from
the date of the most recent consolidated statement of operations
included or incorporated by reference in the Registration Statement and
the Prospectus to a specified date not more than five days prior to the
date of the applicable Terms Agreement, there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated revenues, or decrease in net income or net income per
share of Common Stock of the Company and the Operating Partnership, as
applicable, except in all instances for changes, increases or decreases
which the Registration Statement and the Prospectus disclose have
occurred or may occur; and (iv) in addition to the audit referred to in
their opinions and the limited procedures referred to in clause (iii)
above, they have carried out certain specified procedures with respect
to certain amounts, percentages and financial and statistical
information which are included in the Registration Statement and the
Prospectus and which are specified by you, and have found such amounts,
percentages and financial and statistical information to be in
agreement with relevant accounting, financial and other records of the
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Company and the Operating Partnership and their Subsidiaries identified
in such letter.
(g) At Closing Time, you shall have received from
Price Waterhouse LLP a letter, dated as of the applicable Closing Time,
to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (f) of this Section 5, except that the
specified date referred to shall be a date not more than three business
days prior to the applicable Closing Time and if the Company has
elected to rely on Rule 430A of the 1933 Act Regulations, to the
further effect that they have carried out the procedures specified in
clause (iv) of subsection (f) of this section with respect to certain
amounts, percentages and financial and statistical information
specified by you and deemed to be part of the Registration Statement
pursuant to Rule 430A(b) and have found such amounts, percentages and
financial and statistical information to be in agreement with the
records specified in such clause (iv).
(h) At the time of the execution of the applicable
Terms Agreement, you shall have received a letter from Ernst & Young
LLP dated such date, in form and substance satisfactory to you,
together with signed or reproduced copies of such letter for each of
the other underwriters, to the effect that: (i) they are independent
accountants with respect to Columbus Realty Trust ("Columbus") and its
subsidiaries within the meaning of the 1933 Act and the 1933 Act
Regulations; (ii) it is their opinion that the consolidated financial
statements and supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus and covered
by their opinions therein comply in form in all material respects with
the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations; (iii) based upon limited procedures set forth in detail in
such letter (which shall include, without limitation, the procedures
specified by the American Institute of Certified Public Accountants for
a review of interim financial information as described in SAS No. 71,
Interim Financial Information, with respect to the unaudited financial
statements of Columbus included or incorporated by reference in the
Registration Statement), nothing has come to their attention which
causes them to believe that, (A) any material modifications should be
made to the unaudited consolidated financial statements included or
incorporated by reference in the Registration Statement for them to be
in conformity with GAAP or (B) the unaudited consolidated financial
statements included or incorporated by reference in the Registration
Statement do not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act as it applies to
Form 10-Q and the related published rules and regulations or (C) at the
date of the latest available consolidated interim financial data, there
has been any change in the capital stock of Columbus or in the
consolidated long term debt of Columbus or any decrease in the
consolidated net current assets of
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Columbus, as compared with the amounts shown in the most recent
consolidated balance sheet included or incorporated by reference in the
Registration Statement and the Prospectus or, during the period from
the date of the most recent consolidated statement of operations
included or incorporated by reference in the Registration Statement and
the Prospectus at the date of the latest available consolidated therein
financial data, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated revenues,
or decrease in consolidated income before extraordinary items or
consolidated income before extraordinary items per share of common
stock or in consolidated net income or consolidated net income per
share of common stock of Columbus, except in all instances for changes,
increases or decreases which the Registration Statement and the
Prospectus disclose have occurred or may occur; and (iv) based upon
inquiries of certain officials of Columbus who have responsibility for
financial and accounting matters, nothing came to our attention that
(A) there was any change at a specified date not more than five days
prior to the date hereof in the capital stock, increase in long-term
debt or any decreases in consolidated net current assets or equity of
Columbus as compared with amounts shown on the most recent consolidated
balance sheets included or incorporated by reference in the
Registration Statement and the Prospectus, or (B) for the period from
the date of the latest available consolidated interim financial data to
a specified date not more than five days prior to the date hereof,
there were any decreases, as compared with the corresponding period in
the preceding year, in consolidated revenues or in the total or
per-share amounts of consolidated income before extraordinary items or
of consolidated net income, except in all instances for changes or
decreases which the Registration Statement and Prospectus disclose have
occurred or may occur.
(i) At Closing Time, you shall have received from
Ernst & Young LLP a letter, dated as of the applicable Closing Time, to
the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (h) of this Section 5, except that the
specified date referred to shall be a date not more than three business
days prior to the applicable Closing Time.
(j) At Closing Time and at any relevant Date of
Delivery, the Underwritten Securities shall be rated investment grade
by any "nationally recognized statistical rating organization," as
defined by the Commission for purposes of Rule 436(g)(2) of the 1933
Act Regulations, if and as specified in the Applicable Terms Agreement,
and the Company or the Operating Partnership shall have delivered to
you a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to you, confirming that
the Underwritten Securities have such ratings. Since the time of
execution of such Terms Agreement, there shall not have occurred a
downgrading in the rating assigned to the Underwritten Securities or
any of
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the Company's or the Operating Partnership's other securities by any
such rating organization, and no such rating organization shall have
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of the Underwritten
Securities or any of the Company's or the Operating Partnership's other
securities.
(k) At Closing Time, if applicable, the Underwritten
Securities shall have been approved for listing on the NYSE, subject
only to official notice of issuance, if and as specified in the
applicable Terms Agreement.
(l) If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the
NASD shall not have raised any objection with respect to the fairness
and reasonableness of the underwriting terms and arrangements.
(m) On the date of the applicable Terms Agreement,
you shall have received, in form and substance satisfactory to it, each
lock-up agreement, if any, specified in such Terms Agreement as being
required to be delivered by the persons listed therein.
(n) In the event that the Underwriters are granted an
over-allotment option by the Company or the Operating Partnership in
the applicable Terms Agreement and the Underwriters exercise their
option to purchase all or any portion of the Option Underwritten
Securities, the representations and warranties of the Company and the
Operating Partnership contained herein and the statements in any
certificates furnished by the Company or the Operating Partnership
hereunder shall be true and correct as of each Date of Delivery, and,
at the relevant Date of Delivery, you shall have received:
(1) A certificate, dated such Date of Delivery, of
the President or a Vice President of the Company and the chief
financial officer or chief accounting officer of the Company,
confirming that the certificate delivered at the Closing Time
pursuant to Section 5(d) hereof remains true and correct as of
such Date of Delivery,
(2) The favorable opinion of King & Spalding,
counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery
relating to the Option Underwritten Securities and otherwise
to the same effect as the opinion required by Section 5(b)
hereof (including the statement of belief required by Section
5(d) hereof).
(3) The favorable opinion of Hogan & Hartson
L.L.P., counsel for the Underwriters, dated such Date of
Delivery, relating to
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<PAGE> 40
the Option Underwritten Securities and otherwise to the same
effect as the opinion required by Section 5(c) hereof
(including the statement of belief required by Section 5(d)
hereof).
(4) A letter from Price Waterhouse LLP, in
form and substance satisfactory to you and dated such Date of
Delivery, substantially in the same form and substance as the
letter furnished to you pursuant to Section 5(f) hereof,
except that the "specified date" on the letter furnished
pursuant to this paragraph shall be a date not more than three
business days prior to such Date of Delivery.
(5) A letter from Ernst & Young LLP, in form
and substance satisfactory to you and dated such Date of
Delivery, substantially in the same form and substance as the
letter furnished to you pursuant to Section 5(h) hereof,
except that the "specified date" on the letter furnished
pursuant to this paragraph shall be a date not more than three
business days prior to such Date of Delivery.
(o) At Closing Time and at each Date of Delivery, counsel for
the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass
upon the issuance and sale of the Underwritten Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
or the Operating Partnership in connection with the issuance and sale
of the Underwritten Securities as herein contemplated shall be
satisfactory in form and substance to you and counsel for the
Underwriters.
(p) If any condition specified in this Section 5 shall not
have been fulfilled when and as required to be fulfilled, the
applicable Terms Agreement (or, with respect to the Underwriters'
exercise of any applicable over-allotment option for the purchase of
Option Underwritten Securities on a Date of Delivery after the Closing
Time, the obligations of the Underwriters to purchase the Option
Underwritten Securities on such Date of Delivery) may be terminated by
you by notice to the Company at any time at or prior to the Closing
Time (or such Date of Delivery, as applicable), and such termination
shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6 and 7 shall survive
any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Each of the Company and the Operating Partnership agrees,
jointly and severally, to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
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the 1933 Act or Section 20 of the 1934 Act, and any director, officer, employee
or affiliate thereof, as follows:
(1) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, arising out
of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any
amendment thereto), including the Rule 430A information and
the Rule 434 information deemed to be a part thereof, if
applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material
fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(2) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission;
provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company
and the Operating Partnership; and
(3) against any and all expense whatsoever,
as incurred (including, without limitation, the fees and other
charges of counsel chosen by the Underwriters), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (1) or (2)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company or the
Operating Partnership by any Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
information and the Rule 434 information deemed to be a part thereof, if
applicable,
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<PAGE> 42
or any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company and the Operating Partnership, its directors, officers,
employees and affiliates, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A information and the Rule 434 information deemed to be a
part thereof, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company or the Operating Partnership by
such Underwriter through you expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 6(a) above, counsel to the indemnified
parties shall be selected by Merrill Lynch, and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified parties
shall be selected by the Company. An indemnifying party may participate at its
own expense in the defense of any such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and
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(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for
in Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified part in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Operating Partnership on the one hand, and the Underwriters, on
the other hand, from the offering of the Underwritten Securities pursuant to the
applicable Terms Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Operating Partnership, on the one hand,
and of the Underwriters, on the other hand, in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the
Operating Partnership, on the one hand, and the Underwriters, on the other hand,
in connection with the offering of the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of such Underwritten
Securities (before deducting expenses) received by the Company, and the total
underwriting discount received by the Underwriters, in each case as set forth on
the cover of the Prospectus, or, if Rule 434 is used, the corresponding location
on the Term Sheet bear to the aggregate initial public offering price of such
Underwritten Securities as set forth on such cover.
The relative fault of the Company and the Operating
Partnership, on the one hand, and the Underwriters, on the other hands shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of
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a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and the Operating Partnership or
by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Operating Partnership, and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this Section 7. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 7 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Underwritten Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company and
the Operating Partnership who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company and the Operating Partnership. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number or aggregate principal amount, as the case may be, of
Initial Underwritten Securities set forth opposite their respective names in
applicable Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement or the applicable Terms Agreement or in certificates of officers
of the Company or the Operating Partnership submitted pursuant hereto or thereto
shall
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remain operative and in full force and effect, regardless of any termination of
this Agreement or the applicable Terms Agreement or investigation made by or on
behalf of any Underwriter or controlling person, or by or on behalf of the
Company and the Operating Partnership, and shall survive delivery of and payment
for the Underwritten Securities.
SECTION 9. Termination of Agreement.
(a) This Agreement (excluding the applicable Terms Agreement)
may be terminated for any reason at any time by the Company and the Operating
Partnership or by you upon the giving of 30 days' prior written notice of such
termination to the other party hereto.
(b) You may terminate the applicable Terms Agreement, by
notice to the Company, at any time at or prior to the applicable Closing Time or
any relevant Date of Delivery, if (i) there has been, since the time of
execution of such Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs, assets
or business prospects of the Company, the Operating Partnership and their
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any material adverse
change in the financial markets in the United States or any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in your judgment, impracticable to market the Underwritten
Securities or to enforce contracts for the sale of the Underwritten Securities,
or (iii) trading in any securities of the Company has been suspended or limited
by the Commission or the New York Stock Exchange, Inc. or if trading generally
on the New York Stock Exchange, Inc. or the American Stock Exchange, Inc. has
been suspended or limited, or, minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by either of said
exchanges or order of the Commission or any other governmental authority, (iv) a
banking moratorium has been declared by either Federal or New York authorities,
or (v) if the rating assigned by any nationally recognized statistical rating
organization to any Preferred Stock of the Company as of the date of the
applicable Terms Agreement shall have been lowered since such date or if any
such rating organization shall have publicly announced that it has placed any
Preferred Stock of the Company or Debt Securities of the Operating Partnership
on what is commonly termed a "watch list" for possible downgrading. As used in
this Section 9(b), the term "Prospectus" means the Prospectus in the form first
used to confirm sales of the Underwritten Securities.
(c) If this Agreement or the applicable Terms Agreement is
terminated pursuant to this Section 9, such termination shall be without
liability of any party
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<PAGE> 46
to any other party except as provided in Section 4 hereof, and provided further
that Sections 1, 6 and 7 shall survive such termination and remain in full force
and effect.
SECTION 10. Default by One or More of the Underwriters. If one
or more of the Underwriters shall fail at the applicable Closing Time or the
relevant Date of Delivery, as the case may be, to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), then you shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, you shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not
exceed 10% of the number of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, the
non-defaulting Underwriters shall be obligated, severally and
not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations
under such Terms bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10%
of the number of Underwritten Securities to be purchased on
such date pursuant to such Terms Agreement, such Terms
Agreement (or, with respect to the Underwriters' exercise of
any applicable over-allotment option for the purchase of
Option Underwritten Securities on a Date of Delivery after the
Closing Time, the obligations of the Underwriters to purchase,
and the Company to sell, such Option Underwritten Securities
on such Date of Delivery) shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i)
a termination of applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either you or the Company shall have the right
to postpone the applicable Closing Time or the relevant Date of Delivery, as the
case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any other
documents or arrangements.
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<PAGE> 47
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Merrill Lynch at Merrill Lynch World
Headquarters, World Financial Center, North Tower, New York, New York
10281-1201, attention of Tjarda van S. Clagett; and notices to the Company and
the Operating Partnership shall be directed to it at 3350 Cumberland Circle,
N.W., Suite 2200, Atlanta, Georgia 30339, attention of John T. Glover,
President.
SECTION 12. Parties. This Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the Company,
and the Operating Partnership, you and, upon execution of such Terms Agreement,
any other Underwriters and their respective successors. Nothing expressed or
mentioned in this Agreement or such Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and the Operating Partnership and their respective successors
and the controlling persons and officers and directors referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or such Terms Agreement or
any provision herein or therein contained. This Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING
AGREEMENT AND ANY APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY
REFER TO NEW YORK CITY TIME.
SECTION 14. Counterparts.
This Agreement and the applicable Terms Agreement may be
executed in one or more counterparts, and if executed in more than one
counterpart the executed counterparts shall contribute a single instrument.
SECTION 15. Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the construction
hereof.
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<PAGE> 48
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Agreement, along with all counterparts, will become a binding agreement
between you and the Company in accordance with its terms.
Very truly yours,
POST PROPERTIES, INC., for itself
and, as the general partner, on
behalf of POST APARTMENT HOMES, L.P.
By: /s/ John A. Williams
--------------------------------
Name: John A. Williams
Title: Chairman of the Board and
Chief Executive Officer
CONFIRMED AND ACCEPTED
as of the date first
above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ Tjarda S. Van Claggett
---------------------------------------
Name: Tjarda S. Van Claggett
Title: Director
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Exhibit A
POST PROPERTIES, INC.
a Georgia corporation
Common Stock, Preferred Stock and Depositary Shares
TERMS AGREEMENT
To: Post Properties, Inc.
3350 Cumberland Circle, N.W.
Suite 2200
Atlanta, GA 30339
Ladies and Gentlemen:
We understand that Post Properties, Inc., a Georgia corporation (the
"Company"), proposes to issue and sell [_____ shares of its common stock, par
value $.01 per share (the "Common Stock")] [_____ shares of its preferred stock,
par value $.01 per share (the "Preferred Stock")] [in the form of _____
depositary shares (the "Depositary Shares") each representing ____ of a share of
Preferred Stock] (such securities also being hereinafter referred to as the
"Initial Underwritten Securities"). Subject to the terms and conditions set
forth or incorporated by reference herein, we [the underwriters named below (the
"Underwriters")] offer to purchase, severally and not jointly, the number of
Underwritten Securities [opposite their names set forth below at the purchase
price set forth below, and a proportionate share of Option Underwritten
Securities set forth below, to the extent any are purchased.
Number
Underwriter of Initial Underwritten Securities
Total [$]
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The Underwritten Securities shall have the following terms:
[Common Stock]
Title:
Number of shares:
Number of Option Underwritten Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
[Preferred Stock]
Title:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Initial public offering price per share: $____ plus accumulated dividends, if
any, from _____ Purchase price per share: $____ plus accumulated dividends, if
any, from _____ Other terms and conditions: Closing date and location:
[Depositary Shares]
Title:
Fractional Amount of Preferred Stock represented by each Depositary Share:
Ratings:
Rank:
Number of shares:
Number of Option Underwritten Securities:
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Dividend rate (or formula) per share:
Dividend payment dates:
Liquidation preference per share:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Initial public offering price per share: $____ plus accumulated dividends, if
any, from _____
Purchase price per share: $____ plus accumulated dividends, if any, from _____
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I
entitled "POST PROPERTIES, INC. Common Stock, Preferred Stock and Depositary
Shares--Purchase Agreement" are hereby incorporated by reference in their
entirety herein and shall be deemed to be a part of this Terms Agreement to the
same extent as if such provisions had been set forth in full herein. Terms
defined in such document are used herein as therein defined.
Please accept this offer no later than _____ o'clock P.M. (New York
City time) on _____________ by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
--------------------------------------------
Authorized Signatory
[Acting on behalf of itself and the other named
Underwriters.]
Accepted:
POST PROPERTIES, INC.
By:
-------------------------------
Name:
Title:
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EXHIBIT 4(a)
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
POST PROPERTIES, INC.
I.
The name of the corporation is Post Properties, Inc. (the
"Corporation").
II.
The amendment (the "Amendment") is to add the following as a new
Article 2(d) of the Corporation's Articles of Incorporation, to determine the
terms of a series of the Preferred Stock:
"(d) 7 5/8% Series B Cumulative Redeemable Preferred Shares.
(i) TITLE. The series of Preferred Stock is hereby designated as
the "7 5/8% Series B Cumulative Redeemable Preferred Shares" (the "Series B
Preferred Shares").
(ii) NUMBER. The maximum number of authorized shares of the Series
B Preferred Shares shall be 2,300,000.
(iii) RELATIVE SENIORITY. In respect of rights to receive dividends
and to participate in distributions of payments in the event of any liquidation,
dissolution or winding up of the Corporation, the Series B Preferred Shares
shall rank senior to the Common Stock and any other class or series of shares of
the Corporation ranking, as to dividends and upon liquidation, junior to the
Series B Preferred Shares (collectively, "Junior Shares").
(iv) DIVIDENDS.
(A) The holders of the then outstanding Series B Preferred Shares
shall be entitled to receive, when and as declared by the Board of Directors out
of any funds legally available therefor, cumulative dividends at the rate of
$1.90625 per share per year, payable in equal amounts of $0.47656 per share
quarterly in cash on the last day of each March, June, September, and December
or, if not a Business Day (as hereinafter defined), the next succeeding Business
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Day. Dividends shall begin on December 31, 1997 (each such day being hereafter
called a "Quarterly Dividend Date" and each period ending on a Quarterly
Dividend Date being hereinafter called a "Dividend Period"). Dividends shall be
payable to holders of record as they appear in the share records of the
Corporation at the close of business on the applicable record date (the "Record
Date"), which shall be the 15th day of the calendar month in which the
applicable Quarterly Dividend Date falls on or such other date designated by the
Board of Directors of the Corporation for the payment of dividends that is not
more than 30 nor less than 10 days prior to such Quarterly Dividend Date. The
amount of any dividend payable for any Dividend Period shorter than a full
Dividend Period shall be prorated and computed on the basis of a 360-day year of
twelve 30-day months. Dividends paid on the Series B Preferred Shares in an
amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a per share basis among
all such shares at the time outstanding.
"Business Day" shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in New
York City are authorized or required by law, regulation or executive order to
close.
(B) The amount of any dividends accrued on any Series B Preferred
Shares at any Quarterly Dividend Date shall be the amount of any unpaid
dividends accumulated thereon, to and including such Quarterly Dividend Date,
whether or not earned or declared, and the amount of dividends accrued on any
shares of Series B Preferred Shares at any date other than a Quarterly Dividend
Date shall be equal to the sum of the amount of any unpaid dividends accumulated
thereon, to and including the last preceding Quarterly Dividend Date, whether or
not earned or declared, plus an amount calculated on the basis of the annual
dividend rate of $1.90625 per share for the period after such last preceding
Quarterly Dividend Date to and including the date as of which the calculation is
made based on a 360-day year of twelve 30-day months.
(C) Except as provided in this paragraph (d), the Series B
Preferred Shares will not be entitled to any dividends in excess of full
cumulative dividends as described above and shall not be entitled to participate
in the earnings or assets of the Corporation, and no interest, or sum of money
in lieu of interest, shall be payable in respect of any dividend payment or
payments on the Series B Preferred Shares which may be in arrears.
(D) Any dividend payment made on the Series B Preferred Shares
shall be first credited against the earliest accrued but unpaid dividend due
with respect to such shares which remains payable.
(E) If, for any taxable year, the Corporation elects to designate
as "capital gain dividends" (as defined in Section 857 of the Internal Revenue
Code of 1986, as amended (the "Code")), any portion (the "Capital Gains Amount")
of the dividends paid or made available for the year to holders of all classes
of shares (the "Total Dividends"), then the portion of the Capital Gains Amount
that shall be allocated to the holders of the Series B Preferred Shares shall
equal (i) the Capital Gains Amount multiplied by (ii) a fraction that is equal
to (a) the total dividends paid
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or made available to the holders of the Series B Preferred Shares for the year
over (b) the Total Dividends.
(F) No dividends on the Series B Preferred Shares shall be
authorized by the Board of Directors or be paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of the
Corporation, including any agreement relating to its indebtedness, prohibit such
authorization, payment or setting apart for payment or provides that such
authorization, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such authorization or payment shall be
restricted or prohibited by law. Notwithstanding the foregoing, dividends on the
Series B Preferred Shares will accrue whether or not the Corporation has
earnings, whether or not there are funds legally available for the payment of
such dividends and whether or not such dividends are authorized.
(v) LIQUIDATION RIGHTS.
(A) Upon the voluntary or involuntary dissolutions, liquidation or
winding up of the Corporation, the holders of the Series B Preferred Shares then
outstanding shall be entitled to receive and to be paid out of the assets of the
Corporation available for distribution to its shareholders, before any payment
or distribution shall be made on any Junior Shares, the amount of $50.00 per
share, plus accrued and unpaid dividends thereon.
(B) After the payment to the holders of the Series B Preferred
Shares of the full preferential amounts provided for in this paragraph (d), the
holder of the Series B Preferred Shares, as such, shall have no right or claim
to any of the remaining assets of the Corporation.
(C) If, upon any voluntary or involuntary dissolution,
liquidation, or winding up of the Corporation, the amounts payable with respect
to the preference value of the Series B Preferred Shares and any other shares of
the Corporation ranking as to any such distribution on a parity with the Series
B Preferred Shares are not paid in full, the holders of the Series B Preferred
Shares and of such other shares will share ratably in any such distribution of
assets of the Corporation in proportion to the full respective preference
amounts to which they are entitled.
(D) Neither the sale, lease, transfer or conveyance of all or
substantially all of the property or business of the Corporation, nor the merger
or consolidation of the Corporation into or with any other entity or the merger
or consolidation of any other entity into or with the Corporation, shall be
deemed to be a dissolution, liquidation or winding up, voluntary or involuntary,
for the purposes of this paragraph (d).
(vi) REDEMPTION.
(A) OPTIONAL REDEMPTION. On and after October 28, 2007, the
Corporation may, at its option, redeem at any time all or, from time to time,
part of the Series B Preferred Shares at a price per share (the " Redemption
Price"), payable in cash, of $25.00, together with all
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accrued and unpaid dividends to and including the date fixed for redemption (the
"Redemption Date"), without interest, to the full extent the Company has funds
legally available therefor. The Series B Preferred Shares have no stated
maturity, except as provided for in subparagraph (ix) below, and will not be
subject to any sinking fund or mandatory redemption provisions.
(B) PROCEDURES OF REDEMPTION.
(1) Notice of redemption will be given by publication in
a newspaper of general circulation in the City of New York, such
publication to be made once a week for two successive weeks commencing
not less than 30 nor more than 60 days prior to the Redemption Date.
Notice of any redemption will also be mailed by the registrar, postage
prepaid, not less than 30 nor more than 60 days prior to the Redemption
Date, addressed to each holder of record of the Series B Preferred
Shares to be redeemed at the address set forth in the share transfer
records of the registrar. No failure to give such notice or any defect
therein or in the mailing thereof shall affect the validity of the
proceedings for the redemption of any Series B Preferred Shares except
as to the holder to whom the Corporation has failed to give notice or
except as to the holder to whom notice was defective. In addition to
any information required by law or by the applicable rules of any
exchange upon which Series B Preferred Shares may be listed or admitted
to trading, such notice shall state: (a) the Redemption Date; (b) the
Redemption Price; (c) the number of Series B Preferred Shares to be
redeemed; (d) the place or places where certificates for such shares
are to be surrendered for payment of the Redemption Price; and (e) that
dividends on the shares to be redeemed will cease to accumulate on the
Redemption Date. If fewer than all of the Series B Preferred Shares
held by any holder are to be redeemed, the notice mailed to such holder
shall also specify the number of Series B Preferred Shares to be
redeemed from such holder. If fewer than all the Series B Preferred
Shares held by any holder are to be redeemed, the notice mailed to such
holder shall also specify the number of Series B Preferred Shares to be
redeemed from such holder.
(2) If notice has been mailed in accordance with
subparagraph (vi)(B)(1) above and provided that on or before the
Redemption Date specified in such notice all funds necessary for such
redemption shall have been irrevocably set aside by the Corporation,
separate and apart from its other funds in trust for the pro rata
benefit of the holders of the Series B Preferred Shares so called for
redemption, so as to be, and to continue to be available therefor,
then, from and after the Redemption Date, dividends on the Series B
Preferred Shares so called for redemption shall cease to accumulate,
and said shares shall no longer be deemed to be outstanding and shall
not have the status of Series B Preferred Shares and all rights of the
holders thereof as shareholder of the Corporation (except the right to
receive the Redemption Price) shall cease. Upon surrender, in
accordance with such notice, of the certificates for any Series B
Preferred Shares so redeemed (properly endorsed or assigned for
transfer, if the Corporation shall so require and the notice shall so
state), such Series B Preferred Shares shall be redeemed by the
Corporation at the Redemption Price. In case fewer than all the Series
B Preferred Shares represented by any
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such certificate are redeemed, a new certificate or certificates shall
be issued presenting the unredeemed Series B Preferred Shares without
cost to the holder thereof.
(3) Any funds deposited with a bank or trust company for
the purpose of redeeming Series B Preferred Shares shall be irrevocable
except that:
(a) the Corporation shall be entitled to receive
from such bank or trust company the interest or other
earnings, if any, earned on any money so deposited in trust,
and the holders of any shares redeemed shall have no claim to
such interest or other earnings; and
(b) any balance of monies so deposited by the
Corporation and unclaimed by the holders of the Series B
Preferred Shares entitled thereto at the expiration of two
years from the applicable Redemption Date shall be repaid,
together with any interest or other earnings earned thereon,
to the Corporation, and after any such repayment, the holders
of the shares entitled to the funds so repaid to the
Corporation shall look only to the Corporation for payment
without interest or other earnings.
(4) No Series B Preferred Shares may be redeemed except
from proceeds from the sale of other capital stock of the Corporation,
including but not limited to common stock, preferred stock, depositary
shares, interests, participations or other ownership interests (however
designated) and any rights (other than debt securities convertible into
or exchangeable for equity securities) or options to purchase any of
the foregoing.
(5) Unless full accumulated dividends on all Series B
Preferred Shares 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, no Series B Preferred Shares shall be redeemed or purchased or
otherwise acquired directly or indirectly (except by conversion into or
exchange for Junior Shares); provided, however, that the foregoing
shall not prevent the redemption of Series B Preferred Shares to
preserve the Corporation's REIT status or the purchase or acquisition
of Series B Preferred Shares pursuant to a purchase or exchange offer
made on the same terms to holders of all outstanding Series B Preferred
Shares.
(6) If the Redemption Date is after a Record Date and
before the related Quarterly Dividend Date, the dividend payable on
such Quarterly Dividend Date shall be paid to the holder in whose name
the Series B Preferred Shares to be redeemed are registered at the
close of business on such Record Date notwithstanding the redemption
thereof between such Record Date and the related Quarterly Dividend
Date or the Corporation's default in the payment of the dividend due.
Except as provided above, the Company will make no payment or allowance
for unpaid dividends, whether or not in arrears, on Series B Preferred
Shares to be redeemed.
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(7) In case of redemption of less than all Series B
Preferred Shares at the time outstanding, the Series B Preferred Shares
to be redeemed shall be selected pro rata from the holders of record of
such shares in proportion to the number of Series B Preferred Shares
held by such holders (with adjustments to avoid redemption of
fractional shares) or by any other equitable method determined by the
Corporation.
(vii) VOTING RIGHTS. Except as required by law, and as set forth
below, the holders of the Series B Preferred Shares shall not be entitled to
vote at any meeting of the shareholders for election of Directors or for any
other purpose or otherwise to participate in any action taken by the Corporation
or the shareholders thereof, or to receive notice of any meeting of
shareholders.
(A) Whenever dividends on any Series B Preferred Shares shall be
in arrears for six or more quarterly periods, whether or not such quarterly
periods are consecutive, the holders of such Series B Preferred Shares (voting
separately as a class with all other series of preferred shares 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 Corporation at a special
meeting called by the holders of record of at least ten percent (10%) of any
series of preferred shares 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 all dividends accumulated on such Series B
Preferred Shares 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. In such case, the entire Board of
Directors of the Corporation will be increased by two Directors.
(B) So long as any Series B Preferred Shares remain outstanding,
the Corporation will not, without the affirmative vote or consent of the holders
of at least two-thirds of the Series B Preferred Shares 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 shares of capital stock
ranking prior to the Series B Preferred Shares with respect to the payment of
dividends or the distribution of assets upon liquidation, dissolution or winding
up or reclassify any authorized shares of the Corporation 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 Corporation's Articles of Incorporation, including this
Amendment, whether by merger, consolidation or otherwise (an "Event"), so as to
materially and adversely affect any right, preference, privilege or voting power
of the Series B Preferred Shares or the holders thereof; provided, however, with
respect to the occurrence of any of the Events set forth in (ii) above, so long
as the Series B Preferred Shares remain outstanding with the terms thereof
materially unchanged, taking into account that upon the occurrence of an Event,
the Corporation 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 Series B Preferred Shares
and provided further that (x) any increase in the amount of the authorized
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Preferred Stock or the creating or issuance of any other series of Preferred
Stock, or (y) any increase in the amount of authorized Series B Preferred Shares
or any other series of Preferred Stock, in each case ranking on a parity with or
junior to the Series B Preferred Shares 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 Series B Preferred Shares shall have been
redeemed or called for redemption and sufficient funds shall have been deposited
in trust to effect such redemption.
(C) On each matter submitted to a vote of the holders of Series B
Preferred Shares in accordance with this paragraph (d), or as otherwise required
by law, each Series B Preferred Share shall be entitled to one vote. With
respect to each Series B Preferred Share, the holder thereof may designate a
proxy, with each such proxy having the right to vote on behalf of the holder.
(viii) CONVERSION. The Series B Preferred Shares are not convertible
into or exchangeable for any other property or securities of the Corporation.
(ix) RESTRICTIONS ON OWNERSHIP.
(A) Definitions. The following terms shall have the following meanings:
(1) "Acquire" shall mean the acquisition of Beneficial
Ownership of Series B Preferred Shares by any means whatsoever including,
without limitation, (A) the acquisition of direct ownership of shares by any
Person, including through the exercise of any option, warrant, pledge, security
interest or similar right to acquire shares, and (B) the acquisition of indirect
ownership of shares (taking into account the constructive ownership rules of
Section 544 of the Code, as modified by Section 856(h)(l)(B) of the Code, and
also applying the look-thru rule contained in Section 856(h)(3)(A) of the Code
to pension trusts described in Section 401(a) of the Code) by a Person who is an
"individual" within the meaning of Section 542(a) (2) of the Code, including
through the acquisition by any Person of any option, warrant, pledge, security
interest or similar right to acquire shares.
(2) "Beneficial Ownership" shall mean, with respect to any
Person that is an "individual" as defined in Section 542(a) (2) of the Code, the
Series B Preferred Shares owned by such Person after taking into account the
constructive ownership rules of Section 544 of the Code, as modified by Section
856(h)(1)(B) of the Code, and after applying the pension trust look-thru rule
contained in Section 856(h)(3)(A) of the Code. The terms "Beneficial Owner,"
"Beneficially Owns" and "Beneficially Owned" shall have the correlative
meanings.
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(3) "Code" shall mean the Internal Revenue Code of 1986, as
amended. Any reference herein to any current provision of the Code shall be
deemed to refer to any future successor provision of federal income statutory
law.
(4) "Initial Public Offering" means the sale of Series B
Preferred Shares pursuant to the Corporation's prospectus supplement dated
October 23, 1997 as filed with the Securities and Exchange Commission pursuant
to Rule 424(b)(5) promulgated under the Securities Act of 1933, as amended.
(5) "Ownership Limit" shall initially mean 6% of the
outstanding Series B Preferred Shares of the Corporation, and after any
adjustment as set forth in subparagraph (ix)(H) below, shall mean such greater
percentage (but not greater than 9.8%) of the outstanding Series B Preferred
Shares as so adjusted.
(6) "Person" shall mean an individual, corporation,
partnership, estate, trust (including a trust qualified under Section 401(a) or
501(c) (17) of the Code), a portion of a trust permanently set aside for or to
be used exclusively for the purposes described in Section 642(c) of the Code,
association, private foundation within the meaning of Section 509(a) of the
Code, joint stock company or other entity and also includes a group as that term
is used for purposes of Section 13(d) (3) of the Securities Exchange Act of
1934, as amended; but does not include an underwriter that participates in a
public offering of the Series B Preferred Shares for a period of 90 days
following the purchase by such underwriter of the Series B Preferred Shares.
(7) "REIT" shall mean a Real Estate Investment Trust under
Section 856 of the Code.
(8) "Restricted Transfer Redemption Price" shall mean the
lower of (A) the price paid by the transferee from whom shares are being
redeemed and (B) the average of the last reported sales prices on the New York
Stock Exchange of Series B Preferred Shares on the ten trading days immediately
preceding the date fixed for redemption by the Board of Directors, or if the
Series B Preferred Shares are not then traded on the New York Stock Exchange,
the average of the last reported sales prices of the Series B Preferred Shares
on the ten trading days immediately preceding the relevant date as reported on
any exchange or quotation system over which the Series B Preferred Shares may be
traded, or if the Series B Preferred Shares are not then traded over any
exchange or quotation system, then the price determined in good faith by the
Board of Directors of the Corporation as the fair market value of Series B
Preferred Shares on the relevant date.
(9) "Restriction Termination Date" shall mean the first day
after the date of the Initial Public Offering on which the Corporation
determines pursuant to subparagraph (ix)(K) below that it is no longer in the
best interests of the Corporation to attempt to, or continue to, qualify as a
REIT.
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(10) "Transfer" shall mean any sale, transfer, gift,
assignment, devise or other disposition that results in a change in the record
or Beneficial Ownership of Series B Preferred Shares or the right to vote or
receive dividends on Series B Preferred Shares (including (A) the granting of
any option or entering into any agreement for the sale, transfer or other
disposition of Series B Preferred Shares or the right to vote or receive
dividends on Series B Preferred Shares or (B) the sale, transfer, assignment or
other disposition or grant of any securities or rights convertible into or
exchangeable for Series B Preferred Shares, or the right to vote or receive
dividends on Series B Preferred Shares), whether voluntary or involuntary and
whether by operation of law or otherwise.
(B) Restrictions.
(1) During the period commencing on the date of the Initial
Public Offering and prior to the Restriction Termination Date: (a) no Person
shall Acquire any Series B Preferred Shares if, as a result of such acquisition,
any "individual," as defined in Section 542(a)(2) of the Code (other than a
pension trust which is described in Section 401(a) of the Code) shall
Beneficially Own an amount of Series B Preferred Shares in excess of the
Ownership Limit; (b) no Person shall Acquire any shares of Series B Preferred
Shares if, as a result of such acquisition, the Series B Preferred Shares and
Common Stock of the Corporation would be directly or indirectly owned by less
than 100 Persons (determined without reference to the rules of attribution under
Section 544 of the Code); and (c) no Person shall Acquire any shares if, as a
result of such acquisition, the Corporation would be "closely held" within the
meaning of Section 856(h) of the Code.
(2) Any Transfer that (x) would result in a violation of the
restrictions in subparagraph (ix)(B)(1)(b) or (c) or (y) a transferring
shareholder has actual knowledge will result in a violation of any of the
restrictions in subparagraph (ix)(B)(1)(a) shall be void ab initio as to the
Transfer of such Series B Preferred Shares that would cause the violation of the
applicable restriction in subparagraph (ix)(B)(1), and the intended transferee
shall acquire no rights in such Series B Preferred Shares.
(C) Remedies for Breach.
(1) If the Board of Directors or a committee thereof shall at
any time determine in good faith that a Transfer has taken place that falls
within the scope of subparagraph (ix)(B)(2) or that a Person intends to Acquire
Beneficial Ownership of any shares of the Corporation that will result in
violation of subparagraph (ix)(B)(1) or (2) (whether or not such violation is
intended), the Board of Directors or a committee thereof shall take such action
as it or they deem advisable to refuse to give effect to or to prevent such
Transfer, including, but not limited to, refusing to give effect to such
Transfer on the books of the Corporation or instituting proceedings to enjoin
such Transfer.
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(2) Without limitation to subparagraph (ix)(B)(2) or (C)(1),
any purported transferee of Beneficial Ownership of Series B Preferred Shares
acquired in violation of subparagraph (ix)(B) shall, if it shall be deemed to
have received any such Beneficial Ownership, be deemed to have acted as agent on
behalf of the Corporation in acquiring such of the interests as result in a
violation of subparagraph (ix)(B) and shall be deemed to hold such interests in
trust on behalf and for the benefit of the Corporation. The transferee shall
have no right to receive dividends or other distributions with respect to such
interests, and shall have no right to vote such interests. Such transferee shall
have no claim, cause of action, or any other recourse whatsoever against a
transferor of interests acquired in violation of subparagraph (ix)(B). The
transferee's sole right with respect to such interests shall be to receive at
the Corporation's sole and absolute discretion, either (A) consideration for
such interests upon the resale of the interests as directed by the Corporation
pursuant to subparagraph (ix)(C)(3) or (B) the Restricted Transfer Redemption
Price pursuant to subparagraph (ix)(C)(3).
(3) The Board of Directors shall, within 6 months after
receiving notice of a Transfer that violates subparagraph (ix)(C)(2), either (in
its sole and absolute discretion) (A) direct the transferee of such interests to
sell all interests held in trust for the Corporation pursuant to subparagraph
(ix)(C)(2) for cash in such manner as the Board of Directors directs or (B)
redeem such interests for the Restricted Transfer Redemption Price on such date
within such 6 month period as the Board of Directors may determine. If the Board
of Directors directs the transferee to sell the interests, the transferee shall
receive such proceeds as trustee for the Corporation and pay the Corporation out
of the proceeds of such sale all expenses incurred by the Corporation in
connection with such sale plus any remaining amount of such proceeds that
exceeds the amount paid by the transferee for the interests, and the transferee
shall be entitled to retain only the proceeds in excess of such amounts required
to be paid to the Corporation.
(D) Notice of Restricted Transfer. Any Person who Acquires or attempts
or intends to Acquire shares in violation of subparagraph (ix)(B) shall
immediately give written notice to the Corporation of such event and shall
provide to the Corporation such other information as the Corporation may request
in order to determine the effect, if any, of such Transfer or attempted or
intended Transfer on the Corporation's status as a REIT.
(E) Owners Required To Provide Information. From the date of the
Initial Public Offering and prior to the Restriction Termination Date each
person who is a Beneficial Owner of Series B Preferred Shares and each Person
(including the shareholder of record) who is holding Series B Preferred Shares
for a Beneficial Owner shall provide to the Corporation such information as the
Corporation may request, in good faith, in order to determine the Corporation's
status as a REIT.
(F) Remedies Not Limited. Except as provided in subparagraph (ix)(M),
nothing contained in this subparagraph (ix) shall limit the authority of the
Board of Directors to take such other action as it deems necessary or advisable
to protect the Corporation and the interests of its shareholder in preserving
the Corporation's status as a REIT.
10
<PAGE> 11
(G) Ambiguity. In the case of an ambiguity in the application of any of
the provisions of this subparagraph (ix), including any definition contained in
subparagraph (ix)(A), the Board of Directors shall have the power to determine
the application of the provisions of this subparagraph (ix) with respect to any
situation based on the facts known to it.
(H) Modification of Ownership Limit. Subject to the limitations
provided in subparagraph (ix)(I), the Board of Directors may from time to time
increase the Ownership Limit.
(I) Limitations on Modifications.
(1) The Ownership Limit may not be increased if, after giving
effect to such increase, five Persons who are considered "individuals" pursuant
to Section 542(a) (2) of the Code could Beneficially Own (including ownership of
Common Stock for purposes of this subparagraph (ix)(I)(1)), in the aggregate,
more than 49.0% in value of the outstanding shares of stock of the Corporation.
(2) Prior to the modification of the Ownership Limit pursuant
to subparagraph (ix)(H), the Board of Directors of the Corporation may require
such opinions of counsel, affidavits, undertakings or agreements as it may deem
necessary or advisable in order to determine or ensure the Corporation's status
as a REIT.
(J) Legend. Each certificate for Series B Preferred Shares shall bear a
legend referring to the restrictions described above.
(K) Termination of REIT Status. The Board of Directors shall take no
action to terminate the Corporation's status as a REIT or to amend the
provisions of this subparagraph (ix) until such time as (A) the Board of
Directors adopts a resolution recommending that the Corporation terminate its
status as a REIT or amend this subparagraph (ix), as the case may be, (B) the
Board of Directors presents the resolution at an annual or special meeting of
the shareholders and (C) such resolution is approved by holders of a majority of
the issued and outstanding Series B Preferred Shares.
(L) Severability. If any provision of this subparagraph or any
application of any such provision is determined to be invalid by any Federal or
state court having jurisdiction over the issues, the validity of the remaining
provisions shall not be affected and other applications of such provision shall
be affected only to the extent necessary to comply with the determination of
such court.
(M) NYSE Settlement. Nothing in this Amendment shall preclude the
settlement of any transaction with respect to the Series B Preferred Shares of
the Corporation entered into through the facilities of the New York Stock
Exchange."
11
<PAGE> 12
III.
This Amendment was adopted on October 23, 1997.
IV.
This Amendment was duly adopted by the Board of Directors without
shareholder approval, as such approval was not required.
12
<PAGE> 13
IN WITNESS WHEREOF, Post Properties, Inc. has caused these Articles of
Amendment to be executed and sealed by its duly authorized officers this 23th
day of October, 1997.
POST PROPERTIES, INC.
By: /s/ John A. Williams
-----------------------------------------
John A. Williams
Chairman and Chief Executive Officer
[CORPORATE SEAL]
Attest:
/s/ Sherry W. Cohen
- --------------------
Sherry W. Cohen
Senior Vice President and Secretary
13
<PAGE> 1
EXHIBIT 4(b)
CERTIFICATE OF STOCK
TEMPORARY CERTIFICATE--EXCHANGEABLE FOR DEFINITIVE
ENGRAVED CERTIFICATE WHEN READY FOR DELIVERY
NUMBER SHARES
PCB
- ---------------------- ----------------------
PAR VALUE $.01 PER SHARE
7 5/8% SERIES B CUMULATIVE
REDEEMABLE PREFERRED SHARES
POST PROPERTIES, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF GEORGIA
THIS CERTIFICATE IS TRANSFERABLE SEE REVERSE FOR
IN THE CITIES OF NEW YORK, NY CERTAIN DEFINITIONS
OR WINSTON-SALEM, NC
CUSIP 737464 305
THIS IS TO CERTIFY THAT
is the
owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE 7 5/8%
SERIES B CUMULATIVE REDEEMABLE PREFERRED SHARES OF
Post Properties, Inc. transferable on the books of said Company in person or by
Attorney on the surrender of this certificate properly endorsed.
This certificate is not valid until countersigned by the Transfer Agent
and registered by the Registrar.
Witness the seal of said Company with the signatures by its duly
authorized Officers.
Dated
[SEAL]
COUNTERSIGNED AND REGISTERED: /s/ John A. Williams
WACHOVIA BANK, N.A.
(WINSTON-SALEM, NC) TRANSFER AGENT CHAIRMAN OF THE BOARD
AND REGISTRAR
/s/ Sherry W. Cohen
AUTHORIZED SIGNATURE SECRETARY
<PAGE> 2
POST PROPERTIES, INC.
THE ARTICLES OF AMENDMENT ON FILE IN THE OFFICE OF THE SECRETARY OF STATE OF THE
STATE OF GEORGIA SET FORTH A FULL STATEMENT OF ALL DESIGNATIONS, PREFERENCES,
AND OTHER RIGHTS, VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS,
QUALIFICATIONS, AND TERMS AND CONDITIONS OF REDEMPTION, AND OTHER RELATIVE
RIGHTS OF THE PREFERRED SHARES REPRESENTED BY THIS CERTIFICATE. THE PREFERRED
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON
OWNERSHIP FOR THE PURPOSE OF MAINTAINING THE COMPANY'S STATUS AS A REAL ESTATE
INVESTMENT TRUST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE
ARTICLES OF AMENDMENT ON FILE IN THE OFFICE OF THE SECRETARY OF STATE OF THE
STATE OF GEORGIA SET FORTH A FULL STATEMENT OF (A) THE TRANSFER RESTRICTIONS
WHICH ARE APPLICABLE TO THE PREFERRED SHARES REPRESENTED BY THIS CERTIFICATE AND
(B) THE CONSEQUENCES FOR TRANSFERRING THE PREFERRED SHARES IN VIOLATION OF SUCH
RESTRICTIONS.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT -- _________________ Custodian _________________
(Cust) (Minor)
under Uniform Gifts to Minors Act ________________
(State)
Additional abbreviations may also be used though not in the above list.
For value received, ________________________ hereby sell, assign and
transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
_________________________________________________________________________ shares
of the preferred shares represented by the within Certificate, and do hereby
irrevocably constitute and appoint
_______________________________________________________________________ Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated __________________________
Signature(s) Guaranteed: _____________________________________
Signature(s)
______________________________________ _____________________________________
THE SIGNATURE(S) SHOULD BE NOTICE: THE SIGNATURE(S) ON THIS
GUARANTEED BY AN ELIGIBLE GUARANTOR ASSIGNMENT MUST CORRESPOND WITH THE
INSTITUTION AS DEFINED IN RULE 17Ad-15 NAME(S) AS WRITTEN ON THE FACE OF THE
UNDER THE SECURITIES EXCHANGE ACT OF CERTIFICATE, IN EVERY PARTICULAR,
1934, AS AMENDED. WITHOUT ALTERATION OR ENLARGEMENT, OR
ANY CHANGE WHATEVER.
<PAGE> 1
EXHIBIT 5
October 27, 1997
Post Properties, Inc.
3350 Cumberland Circle
Suite 2200
Atlanta, Georgia 30339
Re: Post Properties, Inc. -- 7 5/8% Series B Cumulative Redeemable
Preferred Shares
Ladies and Gentlemen:
We have acted as counsel for Post Properties, Inc., a Georgia
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, of $50,000,000 liquidation preference 7 5/8%
Series B Cumulative Redeemable Preferred Shares (the "Preferred Shares")
pursuant to a Prospectus Supplement dated October 23, 1997 (the "Preferred
Shares Prospectus Supplement").
In connection with this opinion, we have examined and relied
upon such records, documents, certificates and other instruments as in our
judgment are necessary or appropriate to form the basis for the opinions
hereinafter set forth. In all such examinations, we have assumed the genuineness
of signatures on original documents and the conformity to such original
documents of all copies submitted to us as certified, conformed or photographic
copies, and as to certificates of public officials, we have assumed the same to
have been properly given and to be accurate. As to matters of fact material to
this opinion, we have relied upon statements and representations of
representatives of the Company and of public officials.
This opinion is limited in all respects to the federal laws of
the United States of America and the laws of the States of Georgia and New York,
and no opinion is expressed with respect to the laws of any other jurisdiction
or any effect which such laws may have on the opinions expressed herein. This
opinion is limited to the matters stated herein, and no opinion is implied or
may be inferred beyond the matters expressly stated herein.
Based upon the foregoing, and the other limitations and
qualifications set forth herein, we are of the opinion that:
(i) The Company is a corporation validly existing and, based
solely on a certificate of the Secretary of State of the State of Georgia, in
good standing under the laws of the State of Georgia;
<PAGE> 2
Post Properties, Inc.
October 27, 1997
Page 2
(ii) Upon the issuance and sale of the Preferred Shares as
described in the Preferred Shares Prospectus Supplement, such shares will be
validly issued, fully paid and nonassessable.
The opinions set forth above are subject, as to enforcement,
to (i) bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting the enforcement of creditors' rights generally, and
(ii) general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or law).
This opinion is given as of the date hereof, and we assume no
obligation to advise you after the date hereof of facts or circumstances that
come to our attention or changes in law that occur which could affect the
opinions contained herein. This letter is being rendered solely for the benefit
of the Company in connection with the matters addressed herein. This opinion may
not be furnished to or relied upon by any person or entity for any purpose
without our prior written consent.
Very truly yours,
KING & SPALDING
<PAGE> 1
EXHIBIT 8
KING & SPALDING
191 PEACHTREE STREET
ATLANTA, GEORGIA 30303-1763
TELEPHONE: 404/572-4600
FACSIMILE: 404/572-5100
DIRECT DIAL: DIRECT FAX:
October 23, 1997
Post Properties, Inc.
3350 Cumberland Circle
Suite 2200
Atlanta, Georgia 30339
Re: Post Properties, Inc. -- $50,000,000 Liquidation Preference of
7 5/8% Series B Cumulative Redeemable Preferred Shares
Ladies and Gentlemen:
We have acted as counsel to Post Properties, Inc., a Georgia corporation
(the "Company"), in connection with the registration under the Securities Act
of 1933, as amended, of $50,000,000 Liquidation Preference of 7 5/8% Series B
Cumulative Redeemable Preferred Shares of the Company (the "Series B Preferred
Shares") pursuant to a Prospectus Supplement dated October 23, 1997 (the
"Series B Preferred Shares Prospectus Supplement"). You have requested our
opinion as to the accuracy of the information contained in the Series B
Preferred Shares Prospectus Supplement under the heading "Certain Federal
Income Tax Considerations."
Unless otherwise indicated, all terms used herein with the initial
capital letters shall have the same meaning as in the Series B Preferred Shares
Prospectus Supplement.
In rendering the opinion expressed herein, we have examined such
documents as we have deemed appropriate. In our examination of documents, we
have assumed, with your consent, that all documents submitted to us are
authentic originals, or if submitted as photocopies or telecopies, that they
faithfully reproduce the originals thereof, that all such documents have been
or will be duly executed to the extent required, that all representations and
statements set forth in such documents are true and correct, and that all
obligations imposed by any such documents on the parties thereto have been or
will be performed or satisfied in accordance with their terms. We have also
obtained such additional information and representations as we have deemed
relevant and necessary through consultation with officers of the Company.
<PAGE> 2
October 23, 1997
Page 2
Based upon and subject to the foregoing, we are of the opinion that the
information in the Series B Preferred Shares Prospectus Supplement under the
heading "Certain Federal Income Tax Considerations" constitutes, in all
material respects, a fair and accurate summary of the material United States
federal income tax consequences of the purchase, ownership and disposition of
the Series B Preferred Shares under current law.
The opinion expressed herein is based upon the Internal Revenue Code of
1986, as amended, the U.S. Treasury Regulations promulgated thereunder, current
administrative positions of the U.S. Internal Revenue Service, and existing
judicial decisions, any of which could be changed at any time, possibly on a
retroactive basis. Any such changes could adversely affect the opinion
rendered herein and the tax consequences to the Company and the investors in
the Series B Preferred Shares. In addition, as noted above, our opinion is
based solely on the documents that we have examined, the additional information
that we have obtained, and the representations that have been made to us, and
cannot be relied upon if any of the facts contained in such documents or in
such additional information is, or later becomes, inaccurate or if any of the
representations made to us is, or later becomes, inaccurate. We are not,
however, aware of any facts or circumstances contrary to or inconsistent with
the information, assumptions, and representations upon which we have relied for
purposes of this opinion.
Finally, our opinion is limited to the tax matters specifically covered
thereby, and we have not been asked to address, nor have we addressed, any
other tax consequences of an investment in the Series B Preferred Shares.
Very truly yours,
/s/ King & Spalding
King & Spalding
<PAGE> 1
EXHIBIT 10
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
POST APARTMENT HOMES, L.P.
This First Amendment to Second Amended and Restated Agreement of
Limited Partnership of Post Apartment Homes, L.P. (this "Amendment") is entered
into as of October 28, 1997, by and among Post GP Holdings, Inc. (the "General
Partner") and the Limited Partners of Post Apartment Homes, L.P. All capitalized
terms used herein shall have the meanings given to them in the Second Amended
and Restated Agreement of Limited Partnership of Post Apartment Homes, L.P.,
dated October 24, 1997 (the "Partnership Agreement").
WHEREAS, Post Properties, Inc. ("PPI"), on even date herewith, has
issued 2,000,000 shares of its 7 5/8% Series B Cumulative Redeemable Preferred
Shares, par value $0.01 per share, having a liquidation preference equivalent to
$25.00 per share (the "Series B Preferred Shares"), and has sold such Series B
Preferred Shares in a public offering;
WHEREAS, PPI has contributed to Post LP Holdings, Inc. ("Post LP
Holdings") the net proceeds of the sale of the Series B Preferred Shares;
WHEREAS, Post LP Holdings desires to contribute such net proceeds of
the sale of the Series B Preferred Shares to the Partnership in exchange for
partnership interests in the Partnership as set forth herein;
WHEREAS, the General Partner is authorized to cause the Partnership to
issue interests in the Partnership to Post LP Holdings in exchange for such
contribution;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
Section 1. Contribution.
PPI has contributed to Post LP Holdings, and Post LP Holdings in turn
hereby contributes to the Partnership, the entire net proceeds received by PPI
from the issuance of the Series B Preferred Shares. As provided in Section 4.3
of the Partnership Agreement, Post LP Holdings shall be deemed to have made a
Capital Contribution to the Partnership in the amount of the gross proceeds of
such issuance, which is $50,000,000.00, and the Partnership shall be deemed
simultaneously to have reimbursed Post LP Holdings (and Post LP Holdings shall
be deemed to have reimbursed PPI)
<PAGE> 2
pursuant to Section 7.4.C of the Partnership Agreement for the amount of the
underwriters discount and other costs incurred by PPI in connection with such
issuance.
Section 2. Issuance of Series B Preferred Partnership Units.
In consideration of the contribution to the Partnership made by Post LP
Holdings pursuant to Section 1 hereof, the Partnership hereby issues to Post LP
Holdings 2,000,000 Series B Preferred Partnership Units (as defined herein).
Section 3. Definitions.
In addition to those terms defined in the Partnership Agreement, the
following definitions shall be for all purposes, unless otherwise clearly
indicated to the contrary, applied to the terms used in the Partnership
Agreement and in this Amendment:
"Series B Preferred Partnership Unit" means a Partnership Unit
issued by the Partnership to Post LP Holdings in consideration of the
contribution by Post LP Holdings to the Partnership of the entire net
proceeds received by Post LP Holdings from PPI in connection with PPI's
issuance of the Series B Preferred Shares. The Series B Preferred
Partnership Units shall constitute Preferred Partnership Units. The
Series B Preferred Partnership Units shall have the voting powers,
designation, preferences and relative, participating, optional or other
special rights and qualifications, limitations or restrictions as are
set forth in Exhibit G, attached hereto. It is the intention of the
General Partner, in establishing the Series B Preferred Partnership
Units, that each Series B Preferred Partnership Unit shall be
substantially the economic equivalent of a Series B Preferred Share.
"Series B Preferred Shares" means the 7 5/8 % Series B
Cumulative Redeemable Preferred Shares, par value $0.01 per share,
having a liquidation preference equivalent to $25.00 per share, issued
by PPI.
Section 4. Exhibits to Partnership Agreement.
The General Partner shall maintain the information set forth in Exhibit
A to the Partnership Agreement, as such information shall change from time to
time, in such form as the General Partner deems appropriate for the conduct of
the Partnership affairs, and Exhibit A shall be deemed amended from time to time
to reflect the information so maintained by the General Partner, whether or not
a formal amendment to the Partnership Agreement has been executed amending such
Exhibit A. In addition to the issuance of Series B Preferred Partnership Units
to Post LP Holdings pursuant to this Amendment, such information shall reflect
(and Exhibit A shall be deemed amended from time to time to reflect) the
issuance of any additional Partnership Units to one or both of the Post Partners
or any other Person, the transfer of Partnership Units and the redemption of any
Partnership Units, all as contemplated herein.
-2-
<PAGE> 3
In addition, the Partnership Agreement is hereby amended by attaching
thereto as Exhibit G the Exhibit G attached hereto.
-3-
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have executed the Amendment
under seal as of the date first written above.
GENERAL PARTNER:
POST GP HOLDINGS, INC.,
a Georgia corporation
By:
---------------------------------
John A. Williams
Chairman and Chief Executive Officer
Attest:
-----------------------------
Sherry W. Cohen
Vice President and Secretary
[CORPORATE SEAL]
LIMITED PARTNERS:
POST GP HOLDINGS, INC.,
a Georgia corporation,
as attorney-in-fact for the
Limited Partners
By:
---------------------------------
John A. Williams
Chairman and Chief Executive Officer
Attest:
-----------------------------
Sherry W. Cohen
Vice President and Secretary
[CORPORATE SEAL]
-4-
<PAGE> 5
EXHIBIT G
POST APARTMENT HOMES, L.P.
DESIGNATION OF THE VOTING POWERS, DESIGNATION, PREFERENCES AND
RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS AND
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS
OF THE
SERIES B PREFERRED PARTNERSHIP UNITS
The following are the terms of the Series B Preferred Partnership Units
established pursuant to this Amendment:
(a) NUMBER. The maximum number of authorized Series B Preferred
Partnership Units shall be 2,300,000.
(b) RELATIVE SENIORITY. In respect of rights to receive quarterly
distributions and to participate in distributions of payments in the event of
any liquidation, dissolution or winding up of the Partnership, the Series B
Preferred Partnership Units shall rank senior to the Common Partnership Units
and any other class or series of Partnership Units of the Partnership ranking,
as to quarterly distributions and upon liquidation, junior to the Series B
Preferred Partnership Units (collectively, "Junior Partnership Units").
(c) QUARTERLY DISTRIBUTIONS.
(1) The Post Partners, in their capacity as the holders of the then
outstanding Series B Preferred Partnership Units, shall be entitled to receive,
when and as declared by the General Partner out of any funds legally available
therefor, cumulative quarterly distributions at the rate of $1.90625 per Series
B Preferred Partnership Unit per year, payable in equal amounts of $0.47656 per
unit quarterly in cash on the last day of each March, June, September, and
December or, if not a Business Day (as hereinafter defined), the next succeeding
Business Day beginning on December 31, 1997 (each such day being hereafter
called a "Quarterly Distribution Date" and each period ending on a Quarterly
Distribution Date being hereinafter called a "Distribution Period"). Quarterly
distributions on each Series B Preferred Partnership Unit shall accrue and be
cumulative from and including the date of original issue thereof, whether or not
(i) quarterly distributions on such Series B Preferred Partnership Units are
earned or declared or (ii) on any Quarterly Distribution Date there shall be
funds legally available for the payment of quarterly distributions. Quarterly
distributions paid on the Series B Preferred Partnership Units in an amount less
than the total amount of such quarterly distributions
G-1
<PAGE> 6
at the time accrued and payable on such Partnership Units shall be allocated pro
rata on a per unit basis among all such Series B Preferred Partnership Units at
the time outstanding.
"Business Day" shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in New
York City are authorized or required by law, regulation or executive order to
close.
(2) The amount of any quarterly distributions accrued on any Series B
Preferred Partnership Units at any Quarterly Distribution Date shall be the
amount of any unpaid quarterly distributions accumulated thereon, to and
including such Quarterly Distribution Date, whether or not earned or declared,
and the amount of quarterly distributions accrued on any Series B Preferred
Partnership Units at any date other than a Quarterly Distribution Date shall be
equal to the sum of the amount of any unpaid quarterly distributions accumulated
thereon, to and including the last preceding Quarterly Distribution Date,
whether or not earned or declared, plus an amount calculated on the basis of the
annual distribution rate of $1.90625 per unit for the period after such last
preceding Quarterly Distribution Date to and including the date as of which the
calculation is made based on a 360-day year of twelve 30-day months.
(3) Except as provided herein, the Series B Preferred Partnership Units
shall not be entitled to participate in the earnings or assets of the
Partnership, and no interest, or sum of money in lieu of interest, shall be
payable in respect of any distribution or distributions on the Series B
Preferred Partnership Units which may be in arrears.
(4) Any distribution made on the Series B Preferred Partnership Units
shall be first credited against the earliest accrued but unpaid quarterly
distribution due with respect to such Partnership Units which remains payable.
(5) No quarterly distributions on the Series B Preferred Partnership
Units shall be authorized by the General Partner or be paid or set apart for
payment by the Partnership at such time as the terms and provisions of any
agreement of PPI, General Partner or the Partnership, including any agreement
relating to its indebtedness, prohibits such authorization, payment or setting
apart for payment or provides that such authorization, payment or setting apart
for payment would constitute a breach thereof or a default thereunder, or if
such authorization or payment shall be restricted or prohibited by law.
Notwithstanding the foregoing, quarterly distributions on the Series B Preferred
Partnership Units will accrue whether or not the Partnership has earnings,
whether or not there are funds legally available for the payment of such
quarterly distributions and whether or not such quarterly distributions are
authorized.
(d) LIQUIDATION RIGHTS.
(1) Upon the voluntary or involuntary dissolution, liquidation or
winding up of the Partnership, the Post Partners, in their capacity as the
holders of the Series B Preferred Partnership Units then outstanding, shall be
entitled to receive and to be paid out of the assets of the Partnership
G-2
<PAGE> 7
available for distribution to its partners, before any payment or distribution
shall be made on any Junior Partnership Units, the amount of $25.00 per Series B
Preferred Partnership Unit, plus accrued and unpaid quarterly distributions
thereon.
(2) After the payment to the holders of the Series B Preferred
Partnership Units of the full preferential amounts provided for herein, the Post
Partners, in their capacity as the holders of the Series B Preferred Partnership
Units as such, shall have no right or claim to any of the remaining assets of
the Partnership.
(3) If, upon any voluntary or involuntary dissolution, liquidation, or
winding upon of the Partnership, the amounts payable with respect to the
preference value of the Series B Preferred Partnership Units and any other
Preferred Partnership Units of the Partnership ranking as to any such
distribution on a parity with the Series B Preferred Partnership Units are not
paid in full, the holders of the Series B Preferred Partnership Units and of
such other Preferred Partnership Units will share ratably in any such
distribution of assets of the Partnership in proportion to the full respective
preference amounts to which they are entitled.
(4) Neither the sale, lease or conveyance of all or substantially all
of the property or business of the Partnership, nor the merger or consolidation
of the Partnership into or with any other entity or the merger or consolidation
of any other entity into or with the Partnership, shall be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary, for the
purposes hereof.
(e) REDEMPTION.
(1) OPTIONAL REDEMPTION. On and after October 28, 2007, the General
Partner may, at its option, cause the Partnership to redeem at any time all or,
from time to time, part of the Series B Preferred Partnership Units at a price
per unit (the " Redemption Price"), payable in cash, of $25.00, together with
all accrued and unpaid distributions to the and including the date fixed for
redemption (the "Redemption Date"). The Series B Preferred Partnership Units
have no stated maturity and will not be subject to any sinking fund or mandatory
redemption provisions.
(2) PROCEDURES OF REDEMPTION.
(i) At any time that PPI exercises its right to redeem
all or any of the Series B Preferred Shares, the General Partner shall
exercise its right to cause the Partnership to redeem an equal number
of Series B Preferred Partnership Units in the manner set forth herein.
(ii) No Series B Preferred Partnership Units may be
redeemed except from proceeds from the sale of capital stock of PPI,
including but not limited to common stock, preferred stock, depositary
shares, interests, participations or other ownership interests (however
designated) and any rights (other than debt securities convertible into
the exchangeable for equity securities) or options to purchase any of
the foregoing. The proceeds
G-3
<PAGE> 8
of such sale of capital stock of PPI shall be conveyed by PPI to the
Post Partners, by contribution or loan, and thereupon contributed by
the Post Partners to the Partnership pursuant to the requirements of
Section 4.2 of the Partnership Agreement.
(f) VOTING RIGHTS. Except as required by law, the General Partner, in
its capacity as the holder of the Series B Preferred Partnership Units, shall
not be entitled to vote at any meeting of the Partners or for any other purpose
or otherwise to participate in any action taken by the Partnership or the
Partners, or to receive notice of any meeting of Partners.
(g) CONVERSION. The Series B Preferred Partnership Units are not
convertible into or exchangeable for an other property or securities of the
Partnership.
(h) RESTRICTIONS ON OWNERSHIP. The Series B Preferred Partnership Units
shall be owned and held solely by one or both of the Post Partners. As of the
date hereof, all of the Series B Preferred Partnership Units are owned by Post
LP Holdings.
(i) GENERAL. The rights of the Post Partners, in their capacity as
holders of the Series B Preferred Partnership Units, are in addition to and not
in limitation on any other rights or authority of the Post Partners, in any
other capacity, under the Partnership Agreement. In addition, nothing contained
herein shall be deemed to limit or otherwise restrict any rights or authority of
the Post Partners, under the Partnership Agreement, other than in their capacity
as the holders of the Series B Preferred Partnership Units.
G-4
