Exhibit 1.1
POST APARTMENT HOMES, L.P.
UNDERWRITING AGREEMENT
May 25, 2005
WACHOVIA CAPITAL MARKETS, LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
as Representatives of the several Underwriters
c/o Wachovia Capital Markets, LLC
One Wachovia Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Post Apartment Homes, L.P., a Georgia limited partnership (the "Operating
Partnership"), confirms its agreement with Wachovia Capital Markets, LLC
("Wachovia Securities") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other Underwriters named in
Schedule A hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Wachovia Securities and ▇▇▇▇▇▇▇ ▇▇▇▇▇ are acting as
representatives (in such capacity, the "Representatives"), with respect to the
issue and sale by the Operating Partnership and the purchase by the
Underwriters, acting severally and not jointly, of the respective principal
amounts set forth in said Schedule A of $100,000,000 aggregate principal amount
of the Operating Partnership's 5.45% Senior Notes due 2012 (the "Securities").
The Securities are to be issued pursuant to an indenture dated as of September
15, 2000 (the "Base Indenture") between the Operating Partnership and SunTrust
Bank, as trustee (the "Trustee"), as supplemented by the First Supplemental
Indenture, dated as of December 1, 2000 (the "First Supplemental Indenture" and
together with the Base Indenture, the "Indenture").
The Operating Partnership understands that the Underwriters propose to
make a public offering of the Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered.
The Operating Partnership has prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "1933 Act"), a registration statement
(No. 333-55994) on Form S-3, relating to certain securities (the "Shelf
Securities") to be issued from time to time by the Operating Partnership. The
Operating Partnership also has filed with, or proposes to file with, the
Commission pursuant to Rule 424 under the Securities Act a prospectus supplement
specifically relating to the Securities. Such registration statement and any
post-effective amendments thereto, if applicable, has been declared effective by
the Commission. The registration statement as amended to the date of this
Agreement is hereinafter referred to as the "Registration Statement" and the
related prospectus covering the Shelf Securities in the form first used to
confirm sales of the Securities is hereinafter referred to as the "Base
Prospectus." The Base Prospectus as supplemented by the prospectus supplement
specifically relating to the Securities in the form first used to confirm sales
of the Securities is hereinafter referred to as the "Prospectus." Any reference
in this Agreement to the Registration Statement, the Base Prospectus, any
preliminary form of Prospectus (a "preliminary prospectus") previously filed
with the Commission pursuant to Rule 424 or the Prospectus shall be
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deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act which were filed under
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission thereunder (collectively, the "1934 Act") on or before the
date of this Agreement or the date of the Base Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to "amend,"
"amendment" or "supplement" with respect to the Registration Statement, the Base
Prospectus, any preliminary prospectus or the Prospectus shall be deemed to
refer to and include any filing of documents under, or any documents filed
under, the 1934 Act after the date of this Agreement, or the date of the Base
Prospectus, any preliminary prospectus or the Prospectus, as the case may be,
which are deemed to be incorporated by reference therein.
SECTION 1. Representations and Warranties. The Operating Partnership
represents and warrants to, and agrees with, each Underwriter, as follows:
(i) Compliance with Registration Requirements. The Operating
Partnership meets the requirements for use of Form S-3 under the 1933 Act.
The Registration Statement has become effective under the 1933 Act and 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 instituted or are pending or, to the knowledge of the Operating
Partnership, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been duly complied
with.
At the time that the Registration Statement became effective and at
the Closing Time, the Registration Statement, and any amendments and
supplements thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1939 Act, and did not and will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. Neither the Prospectus nor any
amendments or supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued and at the Closing Time, included or
will include an untrue statement of a material fact or omitted or will
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The representations and warranties in this subsection shall
not apply to (i) statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
written information furnished to the Operating Partnership by any
Underwriter through Wachovia Securities expressly for use in the
Registration Statement (or any amendment thereto) or to the Prospectus (or
any amendment or supplement thereto) and (ii) that part of the
Registration Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the 1939 Act of the Trustee.
(ii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were filed with the Commission, complied in
all material respects with the requirements of the 1934 Act and did 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.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act.
(iv) Financial Statements. The financial statements included in the
Registration Statement and the Prospectus, together with the related
schedules and notes, present fairly in all
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material respects the financial position of each of Post Properties, Inc.
(the "Company") and the Operating Partnership and their respective
consolidated subsidiaries at the dates indicated and the statement of
operations, shareholders' or partners' equity (as applicable) and cash
flows of each of the Company and the Operating Partnership and their
respective consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The selected financial data and the
summary financial information included in the Prospectus present fairly
the information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in the Registration
Statement.
(v) No Material Adverse Change in Business. 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 financial condition, or in the earnings or
business affairs of the Operating Partnership and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"); (B) there have been no
transactions entered into by the Operating Partnership or any of its
subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Operating Partnership and its
subsidiaries considered as one enterprise; and (C) there has been no
material change in the short-term debt or long-term debt of the Operating
Partnership and its consolidated subsidiaries.
(vi) Good Standing of the Operating Partnership. The Operating
Partnership has been duly organized and is validly existing as a limited
partnership in good standing under the laws of the State of Georgia and
has corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and to enter
into and perform its obligations under this Agreement; and the Operating
Partnership is duly qualified as a foreign entity to transact business and
is in good standing in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to be
in good standing could not be reasonably expected to result in a Material
Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant subsidiary"
of the Operating Partnership (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Significant Subsidiary" and, collectively, the
"Significant Subsidiaries") has been duly organized and is validly
existing in good standing under the laws of the jurisdiction of its
organization, has power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and
is duly qualified to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing could not be
reasonably expected to result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock, limited liability company interest or
partnership interest, as the case may be, of each such Significant
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Operating Partnership, directly or
through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; no outstanding capital stock,
limited liability company interest or partnership interest of any
Significant Subsidiary was issued in violation of the preemptive or
similar rights of any securityholder of such Significant Subsidiary. Each
subsidiary of the Operating Partnership, which is a "significant
subsidiary" within the meaning of Rule 1-02(w) of Regulation S-X, is
disclosed in the Registration Statement.
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(viii) Capitalization. The Operating Partnership has an authorized
capitalization as set forth in the Prospectus. The Prospectus accurately
describes the interests in the Operating Partnership held by the Company.
The outstanding partnership interests of the Operating Partnership have
been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding partnership interests of the
Operating Partnership was issued in violation of the preemptive or other
similar rights of any securityholder of the Operating Partnership.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Operating Partnership.
(x) Authorization of the Indenture. Each of the Base Indenture and
the Supplemental Indenture has been duly authorized by the Operating
Partnership and the Indenture has been duly qualified under the 1939 Act
and each constitutes a valid and binding agreement of the Operating
Partnership, enforceable against the Operating Partnership in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
(xi) Authorization of the Securities. The Securities have been duly
authorized and, at the Closing Time, will have been duly executed by the
Operating Partnership and, when authenticated, issued and delivered in the
manner provided for in the Indenture and delivered against payment of the
purchase price therefor as provided in this Agreement, will be in the form
contemplated by the Indenture and will constitute valid and binding
obligations of the Operating Partnership, enforceable against the
Operating Partnership in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law). The Securities will be in
the form contemplated by, and entitled to the benefits of, the Indenture.
(xii) Description of the Securities and the Indenture. The terms of
the Securities and the Indenture will conform in all material respects to
the respective statements relating thereto contained in the Prospectus.
(xiii) Absence of Defaults and Conflicts. Neither the Operating
Partnership nor any of its subsidiaries is in violation of its
organizational documents in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Operating
Partnership or any of its subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the
Operating Partnership or any subsidiary is subject (collectively,
"Agreements and Instruments") except for such defaults that could not be
reasonably expected to result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement, the Indenture and
the Securities and the transactions contemplated thereby (including the
issuance and sale of the Securities and the use of the proceeds from the
sale of the Securities as described in the Prospectus under the caption
"Use of Proceeds") and compliance by the Operating Partnership with its
obligations hereunder and under the Indenture and the Securities 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
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default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Operating Partnership or any subsidiary pursuant
to, the Agreements and Instruments (except for such conflicts, breaches,
defaults or Repayment Events or liens, charges or encumbrances that could
not be reasonably expected to result in a Material Adverse Effect), nor
will such action result in any violation of the provisions of the
organizational documents of the Operating Partnership or any subsidiary or
any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Operating Partnership or any
subsidiary or any of their assets, properties or operations, except for
those violations that could not be reasonably expected to result in a
Material Adverse Effect. As used herein, a "Repayment Event" means any
event or condition which gives the 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 Operating Partnership or any
subsidiary.
(xiv) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Operating Partnership, threatened, against or affecting the Company,
the Operating Partnership or any subsidiary, which is required to be
disclosed in the Registration Statement (other than as disclosed therein),
or which would result in a Material Adverse Effect, or which would
materially and adversely affect the consummation of the transactions
contemplated in this Agreement or the performance by the Operating
Partnership of its obligations hereunder.
(xv) Absence of Manipulation. Neither the Operating Partnership nor
any affiliate of the Operating Partnership has taken, nor will the
Operating Partnership or any affiliate take, directly or indirectly, any
action which is designed to or which has constituted stabilization or
manipulation of the price of any security of the Operating Partnership to
facilitate the sale or resale of the Securities.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Operating Partnership
of its obligations hereunder, in connection with the offering, issuance or
sale of the Securities hereunder or the consummation of the transactions
contemplated by this Agreement or for the due execution, delivery or
performance of the Indenture by the Operating Partnership, except such as
have been already obtained or as may be required under the 1933 Act or
state securities laws and except for the qualification of the Indenture
under the 1939 Act.
(xvii) Possession of Licenses and Permits. The Operating Partnership
and its subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them, except
where the failure so to possess could not, singly or in the aggregate, be
reasonably expected to result in a Material Adverse Effect; the Operating
Partnership and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure so
to comply could not, singly or in the aggregate, be reasonably expected to
result in a Material Adverse Effect; all of the Governmental Licenses are
valid and in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be
in full force and effect could not, singly or in the aggregate, be
reasonably expected to result in a Material Adverse Effect; and neither
the Operating Partnership nor any of
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its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, could be reasonably expected to result in a Material Adverse
Effect.
(xviii) Real Estate. (A) Except as otherwise set forth in the
Registration Statement or the Prospectus, the Operating Partnership and
its subsidiaries directly or indirectly hold good and marketable title to
the real property and improvements described as being owned by the
Operating Partnership and its subsidiaries in the Prospectus (the
"Properties") (which title is, as applicable, in the form of fee simple
title to land, air rights or condominium units, or leasehold title to
land, air rights or condominium units) subject, however, to mortgages on
such Properties, to leases of certain equipment and other personal
property, 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 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 and other telecommunication lines and facilities serving one or
more of such Properties by the cable television and other
telecommunication 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; and
(B) the ground lease under which the Operating Partnership leases the land
or air rights on which any Property is located is in full force and
effect, and the Operating Partnership is not in default in respect of any
of the terms or provisions of any such lease and the Operating Partnership
has not received notice of the assertion of any claim by anyone adverse to
the Operating Partnership's rights as lessee under any such lease, or
affecting or questioning the Operating Partnership's right to the
continued possession or use of the Property under any such lease or of a
default under any such lease, other than claims which could not,
individually or in the aggregate, be reasonably expected to have a
Material Adverse Effect; and (C) 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 be
reasonably expected to, individually or in the aggregate, have a Material
Adverse Effect.
(xix) Insurance. Each of the Operating Partnership and its
subsidiaries is insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are adequate and
customary in the businesses in which they are engaged, except where the
failure to be so insured could not be reasonably expected to have a
Material Adverse Effect.
(xx) No Plan Assets. The assets of the Operating Partnership do not
constitute "plan assets" under the Employee Retirement Income Security Act
of 1974, as amended.
(xxi) Taxation as REIT. The Company was organized and has operated
in conformity with the requirements for qualification and taxation as a
REIT for each of the taxable years beginning with the year ended December
31, 1993, and its current organization and method of operation will enable
it to continue to meet the requirements for qualification and taxation as
a REIT.
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(xxii) Partnership Taxation. The Operating Partnership and each
subsidiary that is a partnership or a limited liability company under
state law (each a "Subsidiary Partnership") are properly classified as
partnerships or disregarded entities, 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.
(xxiii) Tax Returns. Each of the Company and the Operating
Partnership and each of their subsidiaries have filed or caused to be
filed all federal, state, local and foreign tax returns, reports,
information returns and statements which have been required to be filed by
them (except for returns, reports, information returns and statements the
failure to file which could not be reasonably expected to have a Material
Adverse Effect) and has paid all taxes required to be paid and any other
assessment, fine or penalty levied against it, to the extent that any of
the foregoing is due and payable, except, in all cases, for any such tax,
assessment, fine or penalty that is being contested in good faith and in
respect of which adequate reserves are being maintained and except to the
extent any such failure to pay could not be reasonably expected to have a
Material Adverse Effect.
(xxiv) Investment Company Act. Neither the Company nor the Operating
Partnership is required, and upon the issuance and sale of the Securities
as herein contemplated and the application of the net proceeds therefrom
as described in the Prospectus will not be required, to register as an
"investment company" under the Investment Company Act of 1940, as amended
(the "1940 Act").
(xxv) Environmental Laws. Except as described in the Prospectus and
except as could not, singly or in the aggregate, be reasonably expected to
result in a Material Adverse Effect, (A) neither the Operating Partnership
nor any of its subsidiaries is in violation of any legally binding
applicable federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution
or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products, asbestos-containing materials or mold
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) the
Operating Partnership and its subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental
Laws and are each in compliance with their requirements, (C) there are no
pending or, to the knowledge of the Operating Partnership, threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Operating Partnership or any of its subsidiaries and (D) there are no
events or circumstances that would reasonably be expected to form the
basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against or
affecting the Operating Partnership or any of its subsidiaries relating to
Hazardous Materials or any applicable Environmental Laws.
SECTION 2. Sale and Delivery to Underwriters; Closing.
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(a) Securities. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the
Operating Partnership agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Operating Partnership, at the price set forth in Schedule B, the
aggregate principal amount of Securities set forth in Schedule A opposite the
name of such Underwriter, plus any additional principal amount of Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of Mayer, Brown,
▇▇▇▇ & Maw, LLP, ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such
other place as shall be agreed upon by the Representatives and the Operating
Partnership, at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing
occurs after 4:30 P.M. (Eastern time) on any given day) business day after the
date hereof (unless postponed in accordance with the provisions of Section 10),
or such other time not later than ten business days after such date as shall be
agreed upon by the Representatives and the Operating Partnership (such time and
date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Operating Partnership by wire transfer of
immediately available funds to a bank account designated by the Operating
Partnership, against delivery to the Representatives for the respective accounts
of the Underwriters of certificates for the Securities to be purchased by them.
It is understood that each Underwriter has authorized the Representatives, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities which it has agreed to purchase. Wachovia
Securities, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Securities
to be purchased by any Underwriter whose funds have not been received by the
Closing Time, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(c) Denominations; Registration. Certificates for the Securities shall be
in such denominations ($1,000 or integral multiples thereof) and registered in
such names as the Representatives may request in writing at least one full
business day before the Closing Time. The Securities, which may be in temporary
form, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time.
SECTION 3. Covenants of the Operating Partnership. The Operating
Partnership covenants with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Operating Partnership, subject to Section 3(b), will notify the Representatives
immediately (i) when any post-effective amendment to the Registration Statement
shall become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission relating to the Prospectus or the Registration Statement, (iii) of
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or any document incorporated by
reference therein or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Operating Partnership will effect the
filings necessary pursuant to Rule 424(b) in compliance with such rule. The
Operating Partnership will make every reasonable effort to prevent the issuance
of any stop order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
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(b) Filing of Amendments. Until the end of the period during which the
Prospectus is required to be delivered under the 1933 Act in connection with the
offering and sale of the Securities, the Operating Partnership will give the
Representatives notice of its intention to file or prepare any amendment to the
Registration Statement 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, will furnish the Representatives 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 the Representatives
or counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Operating Partnership has
furnished or will deliver to the Representatives and counsel for the
Underwriters upon request, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto relating to the
Securities (including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by reference
therein) and signed copies of all consents and certificates of experts, and will
also deliver to the Representatives, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters.
(d) Delivery of Prospectuses. The Operating Partnership has delivered to
each Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter reasonably requested, and the Operating Partnership hereby
consents to the use of such copies for purposes permitted by the 1933 Act. The
Operating Partnership will furnish to each Underwriter, without charge, during
the period when the Prospectus is required to be delivered under the 1933 Act,
such number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request.
(e) Continued Compliance with Securities Laws. The Operating Partnership
will comply with the 1933 Act, the 1934 Act and the 1939 Act so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement and in the Prospectus. If at any time when a prospectus is required by
the 1933 Act to be delivered in connection with sales of the Securities, any
event shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the Underwriters or for the Operating Partnership,
to amend the Registration Statement or amend or supplement the Prospectus in
order that the Prospectus will not include any untrue statements of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act, the Operating Partnership will promptly prepare and file with the
Commission, subject to Section 3(b), such amendment or supplement 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 Operating
Partnership will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Operating Partnership will use its
reasonable best efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions as the Representatives may designate and to
maintain such qualifications in effect for a period of not less than one year
from the later of the effective date of the Registration Statement; provided,
however, that the Operating Partnership shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation or
as a dealer in securities in any jurisdiction in which it is not so qualified or
so subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. The Operating Partnership will also
supply the
9
Underwriters with such information as is necessary for the determination of
the legality of the Securities for investment under the laws of such
jurisdictions as the Underwriters may request.
(g) Rule 158. The Operating Partnership will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Operating Partnership will use the net proceeds
received by it from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(i) Restriction on Sale of Securities. Until the Closing Time, the
Operating Partnership and the Company will not, without the prior written
consent of Wachovia Securities, directly or indirectly, issue, sell, offer or
contract to sell, grant any option for the sale of, or otherwise transfer or
dispose of, any debt securities of the Company or the Operating Partnership.
(j) Reporting Requirements. The Operating Partnership, during the period
when the Prospectus is required to be delivered under the 1933 Act, will file
all documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act.
SECTION 4. Payment of Expenses.
(a) Expenses. The Operating Partnership will pay all expenses incident to
the performance of its obligations under this 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, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters, the Indenture and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, (iv) the
fees and disbursements of the Operating Partnership's counsel, accountants and
other advisors, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus and of the Prospectus and
any amendments or supplements thereto, (vii) the preparation, printing and
delivery to the Underwriters of copies of the Blue Sky Survey and any supplement
thereto, (viii) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Securities, (ix) the costs and expenses of the Operating Partnership
relating to investor presentations on any "road show" undertaken in connection
with the marketing of the Securities, including without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show
presentations, travel and lodging expenses of the representatives and officers
of the Operating Partnership and any such consultants, and the cost of aircraft
and other transportation chartered in connection with the road show and (x) any
fees payable in connection with the rating of the Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Operating Partnership shall reimburse the Underwriters for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
10
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Operating Partnership contained in Section
1 hereof as of the date hereof and as of the Closing Time and to the performance
by the Operating Partnership of its covenants and other obligations hereunder,
and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement
shall remain effective and at Closing Time 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. The Prospectus shall have been filed with the Commission in
accordance with Rule 424(b).
(b) Opinion of Counsel for Operating Partnership. At Closing Time, the
Representatives shall have received the opinion, dated as of Closing Time, of
King & Spalding LLP, counsel for the Operating Partnership, in form and
substance satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters to the
effect set forth in Exhibit A hereto. In giving such opinion such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law
of the States of New York and Georgia and the federal law of the United States,
upon the opinions of counsel satisfactory to the Representatives. Such counsel
may also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Operating Partnership and its subsidiaries and certificates of public officials.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters with respect to the matters set forth in clauses (iii) (with
respect to the binding effect and enforceability of the Indenture), (iv) (with
respect to the binding effect and enforceability of the Securities) and (xii) of
Exhibit A hereto and the penultimate paragraph thereof. In giving such opinion
such counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York and the federal law of the United
States, upon the opinions of counsel satisfactory to the Representatives. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Operating Partnership and its subsidiaries and certificates of public
officials.
(d) Officers' Certificate. At Closing Time, the Representatives shall have
received a certificate, in form and substance reasonably satisfactory to the
Representatives, of the President or a Vice President of the Operating
Partnership and of the chief financial or chief accounting officer of the
Operating Partnership, dated as of Closing Time, as to the absence of the
matters set forth in Section 9(a)(i) hereof and to the effect that (i) the
representations and warranties in Section 1(a) hereof are true and correct with
the same force and effect as though expressly made at and as of Closing Time,
(ii) the Operating Partnership has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time and (iii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or, to their knowledge, contemplated by the
Commission.
(e) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Pricewaterhouse Coopers
LLP a letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters containing statements and information of the type
ordinarily included in
11
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Representatives shall
have received from Pricewaterhouse Coopers LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
(g) Maintenance of Rating. At Closing Time, the Securities shall be rated
at least Baa3 by Moody's Investor's Service Inc. and BBB by Standard & Poor's
Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc., since the date of this
Agreement, there shall not have occurred a downgrading in the rating assigned to
the Securities or any of the Company's or the Operating Partnership's other debt
securities by any "nationally recognized statistical rating agency", as that
term is defined by the Commission for purposes of Rule 436(g)(2) under the 1933
Act, and no such organization shall have publicly announced that it has under
surveillance or review its rating of the Securities or any of the Company's or
the Operating Partnership's other debt securities, in each case, with negative
implications (which shall not include announcements with positive implications
of a possible upgrading, and no implication of a possible downgrading, of such
rating).
(h) Additional Documents. At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and sale of the
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 Operating
Partnership and its partner(s) in connection with the issuance and sale of the
Securities as herein contemplated shall be satisfactory in form and substance to
the Representatives and counsel for the Underwriters.
(i) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representatives by notice to the Operating
Partnership at any time at or prior to Closing Time, 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, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Operating Partnership agrees to
indemnify and hold harmless each Underwriter, its affiliates, as such term is
defined in Rule 501(b) under the 1933 Act (each, an "Affiliate"), its selling
agents and each person, if any, who controls any Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto) or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
12
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the Operating Partnership;
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Wachovia Securities),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that (A) this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Operating Partnership by
any Underwriter through Wachovia Securities expressly for use in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto); and (B) as to any
preliminary prospectus, the Prospectus or any amendment or supplement thereto,
this indemnity agreement shall not inure to the benefit of any Underwriter on
account of any loss, liability, claim, damage or expense arising from the fact
that such Underwriter sold Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated by reference) as then amended or
supplemented in any case where such delivery is required by the 1933 Act if the
Company has previously furnished copies thereof to such Underwriter in the
quantities requested and the loss, claim, damage or liability of such
Underwriter results from an untrue statement or omission of a material fact
contained in such preliminary prospectus, Prospectus (excluding documents
incorporated by reference) or amendment or supplement thereto, which the Company
has sustained the burden of proving was corrected in the Prospectus (excluding
documents incorporated by reference) as then amended or supplemented.
(b) Indemnification of Operating Partnership, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Operating
Partnership, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Operating Partnership
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Operating Partnership by such Underwriter through Wachovia Securities
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
prejudiced as a result thereof and in any event shall not relieve it from any
liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Wachovia Securities,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Operating
13
Partnership. An indemnifying party may participate at its own expense in the
defense of any such action and may assume the defense thereof with counsel
satisfactory to such indemnified party, and shall pay the fees and expenses of
such counsel; provided, however, that (i) if the indemnifying party fails to
assume such defense in a timely manner or (ii) if there exists or is reasonably
likely to exist in the opinion of the indemnified party a conflict of interest
or different defenses that would make it inappropriate in the judgment of such
indemnified party for the same counsel to represent both the indemnified party
and the indemnifying party, then such indemnified party shall be entitled to
retain its own counsel at the expense of the indemnifying party. In no event
shall the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Operating
Partnership on the one hand and the Underwriters on the other hand from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Operating Partnership on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Operating Partnership on the one
hand and the Underwriters on the other hand in connection with the offering of
the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Operating Partnership and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus bear to
the aggregate initial public offering price of the Securities as set forth on
the cover of the Prospectus.
The relative fault of the Operating Partnership on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such 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 Operating Partnership or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Operating Partnership and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of
14
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and each Underwriter's Affiliates and selling agents shall have the
same rights to contribution as such Underwriter, and each director (or person of
similar managerial role) of the Operating Partnership, each officer of the
Company and/or Operating Partnership who signed the Registration Statement, and
each person, if any, who controls the Operating Partnership within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Operating Partnership. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the principal amount of Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Operating Partnership or any of its subsidiaries
submitted pursuant hereto, shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of any Underwriter or
its Affiliates or selling agents, any person controlling any Underwriter, its
officers or directors or any person controlling the Operating Partnership and
(ii) delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Operating Partnership, at any time at or prior to
Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Prospectus (exclusive of any supplement thereto), any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Operating Partnership and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business,
which in the judgment of the Representatives makes it impracticable or
inadvisable to market the Securities or (ii) if there has occurred any material
adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Representatives, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities or (iii) if
trading in any securities of the Company or the Operating Partnership has been
suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the New York Stock Exchange or in the
Nasdaq National Market has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for
15
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority or (iv) a material disruption has occurred in
commercial banking or securities settlement or clearance services in the United
States or (v) if a banking moratorium has been declared by either Federal or New
York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
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,
7 and 8 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 Closing Time to purchase the Securities which it
or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives 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, the Representatives 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
aggregate principal amount of the Securities to be purchased hereunder, each of
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 hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Securities to be purchased hereunder, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representatives or the Operating Partnership shall
have the right to postpone Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
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 the Representatives c/o Wachovia Capital
Markets, LLC, One Wachovia Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
attention of Debt Capital Markets; and notices to the Operating Partnership
shall be directed to it at Post Apartment Homes, L.P. Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Facsimile: ▇▇▇-▇▇▇-▇▇▇▇,
with a copy to King & Spalding LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, III.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon each of the Underwriters and the Operating Partnership and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters 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
16
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Operating Partnership 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 Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT
AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
SECTION 16. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
17
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Operating Partnership a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Operating Partnership in
accordance with its terms.
Very truly yours,
POST APARTMENT HOMES, L.P.
By: POST GP HOLDINGS, INC.
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
and Chief Financial
Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
WACHOVIA CAPITAL MARKETS, LLC
By /s/ ▇▇▇▇▇▇ ▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇▇▇
Title: Director
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director, Investment Banking
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
18
SCHEDULE A
Principal
Amount of
Name of Underwriter Securities
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Wachovia Capital Markets, LLC................................................... $ 48,000,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated..................................................... 40,000,000
PNC Capital Markets, Inc........................................................ 4,000,000
SunTrust Capital Markets, Inc................................................... 4,000,000
▇▇▇▇▇ Fargo Securities, LLC..................................................... 4,000,000
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Total........................................................................... $ 100,000,000
Sch A-1
SCHEDULE B
1. The initial public offering price of the Securities shall be 99.925% of
the principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Underwriters for the Securities
shall be 0.625% of the principal amount thereof.
3. The interest rate on the Securities shall be 5.45% per annum.
Sch B-1
Exhibit A
(i) The Operating Partnership has been duly formed and is validly existing
as a limited partnership under the laws of the state of Georgia. 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 such
counsel's knowledge, is duly qualified as a foreign entity 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.
(ii) The Company and Post GP have been duly formed and are validly
existing and in good standing under the laws of the State of Georgia and have
the power and authority to own, lease and operate their properties and to
conduct the business in which they are engaged.
(iii) Each of the Base Indenture and the Supplemental Indenture has been
duly authorized, executed and delivered by the Operating Partnership and,
assuming that the Trustee has duly authorized, executed and delivered the Base
Indenture and the Supplemental Indenture and has otherwise satisfied all legal
requirements applicable to it to the extent necessary to make the Base Indenture
and the Supplemental Indenture binding against it, each of the Base Indenture
and the Supplemental Indenture constitutes a valid and binding agreement of the
Operating Partnership, enforceable against the Operating Partnership in
accordance with its terms, subject, as to the enforcement of remedies, to
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
similar laws affecting the rights and remedies of creditors generally, and the
effects of general principles of equity. The Indenture has been duly qualified
under the 1939 Act.
(iv) The issuance, execution and delivery of the Securities have been duly
authorized by the Operating Partnership. The Securities when duly executed and
delivered by the Operating Partnership and duly authenticated in accordance with
the terms of the Indenture and delivered and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, will be valid and
binding obligations of the Operating Partnership, enforceable against the
Operating Partnership in accordance with their terms, subject, as to the
enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws affecting the rights and remedies of
creditors generally, and the effects of general principles of equity.
(v) The Underwriting Agreement has been duly authorized, executed and
delivered by the Operating Partnership.
(vi) The execution and delivery of the Underwriting Agreement by the
Partnership, and the performance by the Operating Partnership of its obligations
thereunder and the consummation of the transactions contemplated thereunder, (A)
do not conflict with or constitute a breach or violation of, or default under,
to the knowledge of such counsel, any instrument or agreement filed or
incorporated by reference as an exhibit to the Registration Statement 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, except such
breaches, violations or defaults that could not reasonably be expected to have a
Material Adverse Effect; (B) do not and will not result in a violation of the
certificate of limited partnership or partnership agreement of the Operating
Partnership; or (C) do not and will not result in a violation of any law, rule,
regulation, judgment, order, writ or decree known to us to be applicable to the
Operating
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Partnership, except for such violations that could not reasonably be expected to
have a Material Adverse Effect.
(vii) The Registration Statement is effective under the 1933 Act and, to
counsel's knowledge based solely upon 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. The Prospectus was timely
filed in the manner required by Rule 424 of the 1933 Act.
(viii) The Securities and the Indenture conform in all material respects
to the descriptions thereof contained in the Prospectus.
(ix) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency (other than the 1933 Act and 1939 Act, which have been obtained, or as
may be required under the securities or blue sky laws of the various states) is
required to be made by the Operating Partnership in connection with the
authorization, execution and delivery of the Underwriting Agreement or for the
offering, issuance, sale or delivery of the Securities.
(x) To the knowledge of such 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 Significant Subsidiary or any material property of
the Operating Partnership that is required to be disclosed in the Registration
Statement (other than as disclosed therein).
(xi) Neither the Company nor the Operating Partnership is required to be
registered as an investment company under the ▇▇▇▇ ▇▇▇.
(xii) At the time the Registration Statement became effective and at the
date of the Prospectus, the Registration Statement and the Prospectus (other
than the financial statements and notes thereto, the financial statement
schedules and other financial information and data included or incorporated by
reference therein or omitted therefrom, and the Statement of Eligibility on Form
T-1, as to which such counsel need not express any opinion) complied as to form
in all material respects with the requirements of the 1933 Act, the 1939 Act and
the 1933 Act Regulations.
(xiii) Each document heretofore filed pursuant to the 1934 Act and
incorporated or deemed to be incorporated by reference in the Prospectus (other
than the financial statements and notes thereto, the financial statement
schedules and other financial information and data included or incorporated by
reference therein or omitted therefrom, 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.
(xiv) The Company was organized and has operated in conformity with the
requirements for qualification and taxation as a REIT each of its taxable years
beginning with the year ended December 31, 1993, and its current organization
and method of operation will enable it to continue to meet the requirements for
qualification and taxation as a REIT.
(xv) The Operating Partnership and each Significant Subsidiary that is a
partnership or limited liability company under state law ("Subsidiary
Partnership") are properly classified as partnerships or disregarded entities,
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
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any Subsidiary Partnerships that have terminated, through the date of
termination of such Subsidiary Partnerships.
(xvi) Although the discussion set forth in the Prospectus under the
caption "Certain Federal Income Tax Considerations" does not purport to discuss
all possible United States federal income tax consequences of the purchase,
ownership, and disposition of the Securities, such discussion constitutes, in
all material respects, a fair and accurate summary under current law of the
material United States federal income tax consequences of the purchase,
ownership and disposition of the Securities by a holder who purchases such
Securities, subject to the qualifications set forth therein. The United States
federal income tax consequences of an investment in the Securities by an
investor will depend upon that holder's particular situation, and we express no
opinion as to the completeness of the discussion set forth in "Certain Federal
Income Tax Considerations" as applied to any particular holder.
Such counsel shall additionally state that such counsel has in its capacity as
counsel for the Operating Partnership, such counsel has participated in
conferences with officers and other representatives of the Company and the
Operating Partnership and their independent public accountants and
representatives of the Underwriters and their counsel during which the contents
of the Registration Statement and the Prospectus and related matters were
discussed and reviewed. Although such counsel is not passing upon and does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, on the
basis of the information that was developed in the course of the performance of
the services referred to above, considered in light of such counsel's
understanding of applicable law, nothing has come to such counsel's attention
that caused it to believe that the Registration Statement (other than the
financial statements and notes thereto, the financial statement schedules and
other financial information and data included or incorporated by reference
therein or omitted therefrom, or the Statement of Eligibility on Form T-1, as to
which such counsel need not express a belief), as of the time it became
effective under the 1933 Act, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, or that the Prospectus (other
than the financial statements and notes thereto, the financial statement
schedule and other financial information and data included or incorporated by
reference therein or omitted therefrom, as to which such counsel need not
express a belief), on the date of such Prospectus or as of the date hereof,
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 the light of the circumstances under which they were made, not
misleading.
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
Operating Partnership, Post GP and the Company and (B) may rely as to the
qualification and good standing of each of 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.
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