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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) May 27, 1998
Post Properties, Inc.
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(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
Georgia 1-12080 58-1550675
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(State or other jurisdiction of (Commission File Number) (IRS Employer Identification No.)
incorporation)
One Riverside, Suite 800, 4401 Northside Parkway, Atlanta, Georgia 30327
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(Address of principal executive offices) (Zip Code)
(404) 846-5000
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(Registrant's telephone number, including area code)
</TABLE>
The Exhibit Index is at page 4.
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Item 5. Other Events
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 of 373,250 shares of its Common Stock (the "Shares").
Item 7. Financial Statements and Exhibits
(c) Exhibits.
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<CAPTION>
Exhibit No. Description
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<S> <C>
1 -- Purchase Agreement between the Registrant, Post Apartment Homes,
L.P. and PaineWebber Incorporated, dated as of May 27, 1998
4 -- Terms Agreement between the Registrant and PaineWebber Incorporated,
dated as of May 27, 1998
5 -- Opinion of King & Spalding regarding the validity of the Shares
8 -- Opinion of King & Spalding as to certain tax matters
23 -- Consent of King & Spalding (included in Exhibits 5 and 8)
</TABLE>
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
POST PROPERTIES, INC.
(Registrant)
Date: May 27, 1998 By:/s/ John A. Williams
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John A. Williams
Chief Executive Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Page
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<S> <C> <C>
1 -- Purchase Agreement between the Registrant, Post Apartment Homes,
L.P. and PaineWebber Incorporated, dated as of May 27, 1998
4 -- Terms Agreement between the Registrant and PaineWebber Incorporated,
dated as of May 27, 1998
5 -- Opinion of King & Spalding regarding the validity of the Shares
8 -- Opinion of King & Spalding as to certain tax matters
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
May 27, 1998
PAINEWEBBER INCORPORATED
1285 Avenue of the Americas
New York, New York 10019
Ladies and Gentlemen:
Post Properties, Inc., a Georgia corporation (the "Company"), proposes
to issue and sell up to $169,441,000 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" 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.
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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 (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
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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 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").
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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 Partnership,
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
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
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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
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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.
(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
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properly applied to the historical amounts in the compilation of such
statements. Other than the historical financial statements (and
schedules) included therein, no other historical or pro forma financial
statements (or schedules) are required 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 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. The Company is duly qualified or
registered as a foreign corporation to transact business in the States
of Alabama, District of Columbia, Florida, North Carolina and Tennessee
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
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property or the conduct of business except where the failure to so
qualify or register would not have a Material Adverse Effect.
(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 Alabama, California, Colorado, Florida,
Mississippi, 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. 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.
(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 Alabama,
California, Colorado, Florida, Mississippi, 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
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property or the conduct of business, except where the failure to so
qualify or register would not have a Material Adverse Effect.
(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). 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, directly or
indirectly, 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. The Company, directly or
indirectly, is the sole general partner of the Operating Partnership.
(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 with the Secretary of State
of the State of Georgia and the Preferred Stock is
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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 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
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<PAGE> 19
due and payable, except in all cases for any such tax, assessment, fine
or penalty that is being contested in good faith.
(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
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<PAGE> 20
with the offering and distribution of the Initial Underwritten Securities upon
notice 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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<PAGE> 24
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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<PAGE> 27
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 and, to counsel's knowledge, such
corporation is duly qualified as a foreign corporation in the
jurisdictions set forth in an exhibit to the opinion.
(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
counsel's 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
counsel's 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 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
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<PAGE> 30
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 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
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<PAGE> 31
knowledge, any contractual rights to subscribe for more
shares; and the Common Stock issuable upon conversion of the
Preferred Stock or 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.
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<PAGE> 32
(xi) The Registration Statement is effective under
the 1933 Act and, to counsel's knowledge based solely on
telephonic 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
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<PAGE> 33
extent that it constitutes matters of law or legal conclusions
has been 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 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, 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 with
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<PAGE> 34
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) An amendment to the Second Amended and
Restated Agreement of Limited Partnership of the Operating
Partnership, dated as of the Closing Time, by and among 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 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 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 omitted
to state a material fact required to be stated therein or necessary to
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<PAGE> 35
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 meaning of the 1933 Act and the 1933 Act
Regulations; (ii) it is their opinion
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<PAGE> 36
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
Company and the Operating Partnership and their Subsidiaries identified
in such letter.
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<PAGE> 37
(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 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 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.
(i) 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.
(j) 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.
(k) 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.
- 37 -
<PAGE> 38
(l) 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 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.
(m) 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
- 38 -
<PAGE> 39
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.
(n) 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 you harmless, its directors, officers,
employees and agents and each person, if any, who controls it within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act from and against any
and all losses, claims, liabilities, expenses and damages (including, but not
limited to, any and all investigative, legal and other expenses reasonably
incurred in connection with, and any and all amounts paid in settlement of, any
action, suit or proceeding between any of the indemnified parties and any
indemnifying parties or between any indemnified party and any third party, or
otherwise, or any claim asserted), as and when incurred to which you, or any
such person, may become subject under the 1933 Act, the 1934 Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, liabilities, expenses or damages arise out of or
are based on (i) any untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus, the Registration Statement or the
Prospectus or any amendment or supplement to the Registration Statement or the
Prospectus or in any documents filed under the 1934 Act and deemed to be
incorporated by reference into the Prospectus, or in any application or other
document executed by or on behalf of the Company or the Operating Partnership or
based on written information furnished by or on behalf of the Company or the
Operating Partnership filed in any jurisdiction in order to qualify the
Underwritten Securities under the securities or blue sky laws thereof or filed
with the Commission, (ii) the omission or alleged omission to state in such
document a material fact required to be stated in it or necessary to make the
- 39 -
<PAGE> 40
statements in it, in the light of the circumstances under which they were made,
not misleading or (iii) any act or failure to act or any alleged act or failure
to act by you in connection with, or relating in any manner to, the Underwritten
Securities or an offering, and which is included as part of or referred to in
any loss, claim, damage, liability or action arising out of or based upon
matters covered by clause (i) or (ii) above (provided that the Company or the
Operating Partnership shall not be liable under this clause (iii) to the extent
it is finally judicially determined by a court of competent jurisdiction that
such loss, claim, damage, liability or action resulted directly from any such
acts or failures to act undertaken or omitted to be taken by you through your
gross negligence or willful misconduct); provided that the Company or the
Operating Partnership will not be liable to the extent that such loss, claim,
liability, expense or damage arises from the sale of the Underwritten Securities
in an offering to any person and is based on an untrue statement or omission or
alleged untrue statement or omission made in reliance on and in conformity with
information relating to you furnished in writing to the Company or the Operating
Partnership by you expressly for inclusion in the Registration Statement or any
amendment thereto or the Prospectus or any amendment or supplement thereto. This
indemnity agreement will be in addition to any liability that the Company might
otherwise have.
(b) You will indemnify and hold harmless the Company and the Operating
Partnership, 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, each director of the
Company and each officer of the Company who signed the Registration Statement to
the same extent as the foregoing indemnity from the Company and the Operating
Partnership to you, but only insofar as losses, claims, liabilities, expenses or
damages arise out of or are based on any untrue statement or omission or alleged
untrue statement or omission made in reliance on and in conformity with
information relating to you furnished in writing to the Company or the Operating
Partnership by you expressly for use in the Registration Statement or any
amendment thereto or the Prospectus or any amendment or supplement thereto. This
indemnity will be in addition to any liability that you might otherwise have;
provided, however, that in no case shall you be liable or responsible for any
amount in excess of the underwriting discounts and commissions received by you.
(c) Any party that proposes to assert the right to be indemnified under
this Section 6 will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim is to be made against an
indemnifying party or parties under this Section 6, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not
relieve it from any liability that it may have to any indemnified party under
the foregoing provisions of this Section 6 unless, and only to the extent that,
such omission results in the forfeiture of substantive rights or defenses by the
indemnifying party. If any such action is brought against any indemnified party
and it notifies the indemnifying
- 40 -
<PAGE> 41
party of its commencement, the indemnifying party will be entitled to
participate in and, to the extent that it elects by delivering written notice to
the indemnified party promptly after receiving notice of the commencement of the
action from the indemnified party, jointly with any other indemnifying party
similarly notified, to assume the defense of the action, with counsel reasonably
satisfactory to the indemnified party, and after notice from the indemnifying
party to the indemnified party of its election to assume the defense, the
indemnifying party will not be liable to the indemnified party for any legal or
other expenses except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in connection with
the defense. The indemnified party will have the right to employ its own counsel
in any such action, but the fees, expenses and other charges of such counsel
will be at the expense of such indemnified party unless (i) the employment of
counsel by the indemnified party has been authorized in writing by the
indemnifying party, (ii) the indemnified party has reasonably concluded (based
on advise of counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those available to
the indemnifying party, (iii) a conflict or potential conflict exists (based on
advice of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party)
or (iv) the indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one additional firm admitted to practice in such
jurisdiction at any one time for all such indemnified party or parties. All such
fees, disbursements and other charges will be reimbursed by the indemnifying
party promptly as they are incurred. An indemnifying party will not be liable
for any settlement of any action or claim effected without its written consent
(which consent will not be unreasonably withheld); provided, however, no
indemnifying party shall, without the prior written consent of each indemnified
party, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action or proceeding relating to the matters
contemplated by this Section 6 (whether or not any indemnified party is a party
thereto), unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising or
that may arise out of such claim, action or proceeding. Notwithstanding any
other provision of this Section 6(c), 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 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
- 41 -
<PAGE> 42
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. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 6 hereof is applicable in accordance with its terms but for any reason
is held to be unavailable from the Company and the Operating Partnership or you,
the Company and the Operating Partnership and you will contribute to the total
losses, claims, liabilities, expenses and damages (including any investigative,
legal and other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim asserted, but
after deducting any contribution received by the Company and the Operating
Partnership from persons other than you, such as persons who control the Company
within the meaning of the Act, officers of the Company who signed the
Registration Statement and directors of the Company, who also may be liable for
contribution) to which the Company and the Operating Partnership and you may be
subject in such proportion as shall be appropriate to reflect the relative
benefits received by the Company and the Operating Partnership on the one hand
and you on the other. The relative benefits received by the Company and the
Operating Partnership on the one hand and you on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering of such
Underwritten Securities (before deducting expenses) received by the Company and
the Operating Partnership bear to the total underwriting discounts and
commissions received by you, 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. If, but only if, the allocation provided by the foregoing sentence is not
permitted by applicable law, the allocation of contribution shall be made in
such proportion as is appropriate to reflect not only the relative benefits
referred to in the foregoing sentence but also the relative fault of the Company
and the Operating Partnership on the one hand, and you, on the other, with
respect to the statements or omissions which resulted in such loss, claim,
liability, expense or damage, or action in respect thereof, as well as any other
relevant equitable considerations with respect to such offering. Such relative
fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company and the Operating
Partnership or you, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Operating Partnership and you agree that it would
not be just and equitable if contributions pursuant to this Section 7 were to be
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
liability, expense or damage, or action in respect thereof, referred to above in
this Section 7 shall be deemed to include, for purpose of this Section 7, any
legal or other expenses reasonably incurred by such indemnified party in
connection
- 42 -
<PAGE> 43
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, you shall not be required to contribute any amount
in excess of the underwriting discounts and commissions received by you and no
person found guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) will be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 7, any person who controls a party to this Agreement within the meaning
of the 1933 Act will have the same rights to contribution as that party, and
each officer of the Company who signed the Registration Statement will have the
same rights to contribution as the Company and the Operating Partnership,
subject in each case to the provisions hereof. Any party entitled to
contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made
under this Section 7, will notify any such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 7. Except for a settlement entered into
pursuant to the last sentence of Section 6(c) hereof, no party will be liable
for contribution with respect to any action or claim settled without its written
consent (which consent will not be unreasonably withheld).
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 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. If you elect to terminate this Agreement
as provided in this Section 9, the Company shall be notified promptly by you by
telephone, telex or telecopy, confirmed by letter.
(b) You shall have the right by giving notice as hereinafter specified
at any time at or prior to the applicable Closing Time or any relevant Date of
Delivery, to terminate the applicable Terms Agreement if (i) either of the
Company or the Operating Partnership shall have failed, refused or been unable,
at or prior to the Closing Time, to perform any agreement on its part to be
performed hereunder, (ii) any condition of your obligations specified in Section
5 hereof is not
- 43 -
<PAGE> 44
fulfilled when due, (iii) trading on the NYSE shall have been wholly suspended,
(iv) minimum or maximum prices for trading shall have been fixed, or maximum
ranges for prices for the Common Stock shall have been required, on the NYSE by
the NYSE or by order of the Commission or any other governmental authority
having jurisdiction, (v) a banking moratorium shall have been declared by
federal or New York authorities, or (vi) an outbreak of major hostilities in
which the United States is involved, a declaration of war by Congress, any other
substantial national or international calamity or any other event or occurrence
of a similar character shall have occurred that, in your sole judgment, makes it
impractical or inadvisable to proceed with the completion of the sale of and
payment for 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 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
- 44 -
<PAGE> 45
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.
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 PaineWebber Incorporated at 1285 Avenue of the
Americas, New York, New York 10019, attention of ____________; 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.
- 45 -
<PAGE> 46
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 constitute 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.
- 46 -
<PAGE> 47
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.
By: Timothy A. Peterson
--------------------------------
Name: Timothy A. Peterson
Title: Executive Vice President
POST GP HOLDINGS, INC., as general
partner, on behalf of POST APARTMENT
HOMES, L.P.
By: Timothy A. Peterson
--------------------------------
Name: Timothy A. Peterson
Title: Executive Vice President
CONFIRMED AND ACCEPTED
as of the date first
above written:
PAINEWEBBER INCORPORATED
By: David Jarvis
--------------------------------
Name: David Jarvis
Title: Managing Director
- 47 -
<PAGE> 48
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 $.01 per share (the "Preferred Stock")] [in the form of _____
depositary shares (the "Depositary Shares") each representing ____ of a share of
Preferred Stock] (such securities also being hereinafter referred to as the
"Initial Underwritten Securities"). Subject to the terms and conditions set
forth or incorporated by reference herein, we [the underwriters named below (the
"Underwriters")] offer to purchase, severally and not jointly, the number of
Underwritten Securities [opposite their names set forth below at the purchase
price set forth below, and a proportionate share of Option Underwritten
Securities set forth below, to the extent any are purchased.
Number
Underwriter of Initial Underwritten Securities
Total [$]
<PAGE> 49
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:
- 2 -
<PAGE> 50
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,
PAINEWEBBER INCORPORATED
By:
-----------------------------------------
Authorized Signatory
[Acting on behalf of itself and the other
named Underwriters.]
Accepted:
POST PROPERTIES, INC.
By:
------------------------------------------
Name:
Title:
- 3 -
<PAGE> 1
EXHIBIT 4
POST PROPERTIES, INC.
(a Georgia corporation)
Common Stock
(Par Value $.01 Per Share)
TERMS AGREEMENT
Dated: May 27, 1998
To: Post Properties, Inc.
One Riverside, Suite 800
4401 Northside Parkway
Atlanta, Georgia 30327
Ladies and Gentlemen:
We understand that Post Properties, Inc. (the "Company") proposes to
issue and sell 373,250 shares of its common stock, par value $0.01 per share
(the "Common Stock"). Subject to the terms and conditions set forth or
incorporated by reference herein, PaineWebber Incorporated (the "Underwriter")
offers to purchase 373,250 shares of Common Stock. The Company is advised that
the Underwriter intends to deposit the shares of Common Stock with the trustee
of PaineWebber Equity Trust REIT Series I (A Unit Investment Trust) (the
"Trust"), a registered unit investment trust under the Investment Company Act of
1940, as amended, for which the Underwriter acts as sponsor and depositor, in
exchange for units in the Trust as soon after the execution and delivery of this
Terms Agreement as in the judgment of the Underwriter is advisable.
The Underwritten Securities shall have the following terms:
TITLE: Common Stock
NUMBER OF SHARES: 373,250
INITIAL PUBLIC OFFERING PRICE PER SHARE: $40.1875
PURCHASE PRICE PER SHARE: $38.1781
LISTING REQUIREMENTS: Approved for listing on the NYSE
CLOSING DATE AND LOCATION: June 1, 1998 at 9:00 a.m. at the offices of Hogan &
Hartson L.L.P., 555 Thirteenth Street, N.W., Washington, D.C. 20004.
All the provisions contained in the document attached as Annex A hereto
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.
<PAGE> 2
Please accept this offer no later than ____ p.m. (New York City time)
on May __, 1998 by signing a copy of this Terms Agreement in the space set forth
below and returning the signed copy to us.
Very truly yours,
PAINEWEBBER INCORPORATED
By: David Jarvis
----------------------------------
Name: David Jarvis
Title: Managing Director
Accepted:
By: POST PROPERTIES, INC.
By: Timothy A. Peterson
--------------------------------------
Name: Timothy A. Peterson
Title: Executive Vice President
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Exhibit 5
May 27, 1998
Post Properties, Inc.
One Riverside, Suite 800
4401 Northside Parkway
Atlanta, Georgia 30327
Re: Post Properties, Inc. -- Common Stock
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 373,250 Shares of Common Stock (the
"Shares") pursuant to a Prospectus Supplement dated May 27, 1998 (the
"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;
(ii) Upon the issuance and sale of the Shares as described in
the Prospectus Supplement, such shares will be validly issued, fully
paid and nonassessable.
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
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Exhibit 8
May 27, 1998
Post Properties, Inc.
3350 Cumberland Circle
Suite 2200
Atlanta, Georgia 30339
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 (the "1933 Act"), of 373,250 shares of Common
Stock of the Company (the "Shares") pursuant to a Prospectus Supplement dated
May 27, 1998 (the "Prospectus Supplement"). You have requested our opinion as to
the accuracy of the information contained in the Prospectus Supplement under the
heading "Federal Income Tax Considerations."
We understand that our opinion will be attached as an exhibit to the
Company's Current Report on Form 8-K, which will be filed with the Securities
and Exchange Commission (the "Commission") on May 27, 1998. We hereby consent
to such use of our opinion. In giving such consent, we do not thereby admit that
we are in the category of persons whose consent is required under Section 7 of
the 1933 Act.
Unless otherwise indicated, all terms used herein with initial capital
letters shall have the same meaning as in the Prospectus Supplement.
<PAGE> 2
May 27, 1998
Page 2
In rendering the opinion expressed herein, we have examined such
documents as we have deemed appropriate, including (but not limited to) the
Registration Statement on Form S-3 (File No. 333-36595), including the reports
incorporated by reference therein, filed by the Company with the Commission on
September 29, 1997, the Prospectus dated as of October 20, 1997, the Prospectus
Supplement, and the analyses of qualifying income prepared by the Company with
the assistance of Price Waterhouse LLP, the Company's accountants. We have also
examined the organizational documents, as amended, of the following entities:
the Company, the Operating Partnership, Post Development Services Limited
Partnership, Addison Circle One, Ltd., Addison Circle Two, Ltd., Rice Lofts,
L.P., Post Rice Lofts, LLC, Post Uptown, LLC, Akard-McKinney Investment Company,
LLC, Columbus Management Services, LLC, Post Mississippi Properties,LLC, Post
Knox Park, LLC, Greenwood Residential, LLC, Uptown Denver, LLC, Post Services,
Inc. and Addison Circle Access, Inc. 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 also have obtained
such additional information and representations as we have deemed relevant and
necessary through consultation with officers of the Company and with Price
Waterhouse LLP, including representations from the Company in a letter to us of
even date herewith.
Based upon and subject to the foregoing, we are of the opinion that the
information in the Prospectus Supplement under the heading "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 Shares under current law, and, to the
extent such discussion contains statements of law or legal conclusions, such
statements and conclusions are the opinion of King & Spalding.
The opinion expressed herein is given as of the date hereof and 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 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
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May 27, 1998
Page 3
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 Shares.
Very truly yours,
King & Spalding
