POST APARTMENT HOMES, L.P.
May 31, 2006
WACHOVIA CAPITAL MARKETS, LLC
J.P. MORGAN SECURITIES INC.
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o Wachovia Capital Markets, LLC
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288
Ladies and Gentlemen:
Post Apartment Homes, L.P., a Georgia limited partnership (the “the Company”), confirms its agreement with Wachovia Capital Markets, LLC (“Wachovia Securities”), J.P. Morgan Securities Inc. (“J.P. Morgan Securities”) and each of the other Underwriters named in Schedule 1 hereto (collectively, the “Underwriters”, which term shall also include any underwriter substituted as hereinafter provided in Section 10 hereof), for whom Wachovia Securities and J.P. Morgan Securities are acting as representatives (in such capacity, the “Representatives”), with respect to the issue and sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective principal amounts set forth in said Schedule 1 of $150,000,000 aggregate principal amount of the Company’s 6.30% Senior Notes due 2013 (the “Securities”). The Securities are to be issued pursuant to an indenture dated as of September 15, 2000 (the “Base Indenture”) between the Company and SunTrust Bank, as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture, dated as of December 1, 2000 (the “Supplemental Indenture” and together with the Base Indenture, the “Indenture”).
The Company 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 Company 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 Company. The Company also has filed with, or proposes to file with, the Commission pursuant to Rule 424 under the 1933 Act a prospectus supplement specifically relating to the Securities. Such registration statement, as amended at the time it became effective, including the information, if any, deemed pursuant to 430B under the 1933 Act to be part of the registration statement at the time of its effectiveness (“Rule 430B Information”), is referred to herein as the “Registration Statement”. The term “Base Prospectus” means the prospectus dated March 5, 2001 included in the Registration Statement, including all information incorporated by reference therein. The term “Prospectus Supplement” means the prospectus supplement specifically relating to the Securities in the form first filed with the Commission pursuant to Rule 424 under the 1933 Act, including all information incorporated by reference therein. The term “Prospectus” means the Base Prospectus together with the Prospectus Supplement. The term “Preliminary Prospectus” means any preliminary form of the
Prospectus in the form filed with the Commission pursuant to Rule 424 of the 1933 Act Regulations. If the Company has filed an abbreviated registration statement pursuant to Rule 462(b) under the 1933 Act (the “Rule 462 Registration Statement”), then any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration Statement. Any reference in this Agreement to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be, and any reference to “amend”, “amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the “1934 Act”) that are deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to the time when sales of the Securities were first made (the “Time of Sale”), the Company had prepared the following information (collectively with the information referred to in the next succeeding sentence, the “Time of Sale Information”): a Preliminary Prospectus dated May 31, 2006, and each “free-writing prospectus” (as defined pursuant to Rule 405 under the 1933 Act) listed on Annex B hereto.
SECTION 1. Representations and Warranties. The Company represents and warrants to, and agrees with, each Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company 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 Company, 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 as of the Closing Date, 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 Trust Indenture Act of 1939, and the rules and regulations of the Commission thereunder (collectively, 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. At the Time of Sale, the Time of Sale Information did not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date (as defined below), the Prospectus will not contain any untrue statement of a material fact or omit 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. 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 Company by any Underwriter through the Representatives 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 by reference in the Registration Statement, the Prospectus or the Time of Sale Information, when they were filed with the Commission conformed in all material respects to the requirements of the 1933 Act or the 1934 Act, as applicable, and none of such documents contained any 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, in the light of the circumstances under which they were made, not misleading.
(iii) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the 1933 Act.