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EX-2.1 REDEMPTION AGREEMENT | Document Parties: POST PROPERTIES INC | POST APARTMENT HOMES, L.P  | JRC ACQUISITION CORPORATION You are currently viewing:
This Redemption Agreement involves

POST PROPERTIES INC | POST APARTMENT HOMES, L.P | JRC ACQUISITION CORPORATION

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Title: EX-2.1 REDEMPTION AGREEMENT
Governing Law: Georgia     Date: 7/13/2004
Law Firm: King Spalding LLP; and with a copy to: Kutak Rock LLP    

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                                                                  EXECUTION COPY

 

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                              REDEMPTION AGREEMENT

 

                                      BETWEEN

 

                           POST APARTMENT HOMES, L.P.,

                          A GEORGIA LIMITED PARTNERSHIP

 

                                       AND

 

                           JRC ACQUISITION CORPORATION

                             AN ILLINOIS CORPORATION

 

                             AS OF FEBRUARY 27, 2004

 

--------------------------------------------------------------------------------

 

  POST CANYON(R) APARTMENTS                 FULTON COUNTY, GEORGIA

  POST CHASE(R) APARTMENTS                   GWINNETT COUNTY, GEORGIA

  POST CORNERS(R) APARTMENTS                GWINNETT COUNTY, GEORGIA

  POST COURT(R) APARTMENTS                  GWINNETT COUNTY, GEORGIA

  POST LANE(R) APARTMENTS                   COBB COUNTY,   GEORGIA

  POST MILL(R) APARTMENTS                   COBB COUNTY,   GEORGIA

  POST LAKE(R) APARTMENTS                   SEMINOLE COUNTY, FLORIDA

 

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                                TABLE OF CONTENTS

 

<TABLE>

<CAPTION>

                                                                                                                    PAGE

<S>                                                                                                                 <C>

ARTICLE 1               AGREEMENT TO CONVEY AND ACCEPT.................................................                2

 

   1.1       AGREEMENT TO CONVEY AND ACCEPT............................................................                2

 

   1.2       PROPERTY DEFINED..........................................................................                4

 

   1.3       PERMITTED EXCEPTIONS......................................................................                4

 

   1.4       OPTION MONEY..............................................................................                 4

 

   1.5       OWNERSHIP OF POST(R) TRADENAMES AND SERVICE MARKS.........................................                5

 

   1.6       TRANSITION OF PROPERTY MANAGEMENT.   UPON CLOSING,.........................................                6

 

   1.7       DEPOSIT OF LETTER OF CREDIT AS OPTION MONEY...............................................                7

 

ARTICLE 2               REDEMPTION.....................................................................                8

 

   2.1       PROPERTY VALUE............................................................................                8

 

   2.2       REDEMPTION CONSIDERATION..................................................................                8

 

   2.3       VALUATION OF PREFERRED UNITS..............................................................                9

 

   2.4       JUPITER'S PURCHASE OF PREFERRED UNITS.....................................................                9

 

   2.5       ASSUMED PROJECT FINANCING.................................................................               10

 

   2.6       PROJECT FINANCE CONDITION.................................................................               13

 

   2.7       ASSUMPTION OF OTHER ASSUMED DEBT..........................................................               13

 

   2.8       JUPITER'S FAILURE OR INABILITY TO ACQUIRE PREFERRED UNITS.................................               15

 

   2.10      EXERCISE OF CASH OPTION...................................................................               17

 

ARTICLE 3               TITLE AND SURVEY...............................................................               17

 

   3.1       TITLE EXAMINATION; COMMITMENT FOR TITLE INSURANCE.........................................               17

 

   3.2       SURVEY....................................................................................               17

 

   3.3       TITLE OBJECTIONS; CURE OF TITLE OBJECTIONS................................................               18

 

   3.4       CONVEYANCE OF TITLE.......................................................................               20

 

   3.5       PRE-CLOSING "GAP" TITLE DEFECTS...........................................................               20

 

   3.6       POST'S COVENANT NOT TO ENCUMBER...........................................................               21

 

ARTICLE 4               INSPECTION PERIOD..............................................................               21

 

   4.1       RIGHT OF INSPECTION.......................................................................               21

 

   4.2       RIGHT OF TERMINATION......................................................................               22

 

ARTICLE 5               CLOSING........................................................................               22

 

   5.1       TIME AND PLACE............................................................................               22

 

   5.2       POST'S OBLIGATIONS AT CLOSING.............................................................               23

</TABLE>

 

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<TABLE>

<S>                                                                                                                  <C>

   5.3       JUPITER'S OBLIGATIONS AT CLOSING..........................................................               25

 

   5.4       CREDITS AND PRORATIONS....................................................................               26

 

   5.5       CLOSING COSTS.............................................................................               29

 

   5.6       CONDITIONS PRECEDENT TO OBLIGATION OF JUPITER.............................................               31

 

   5.7       CONDITIONS PRECEDENT TO OBLIGATION OF POST................................................               32

 

   5.8       JUPITER'S SECTION 1031 EXCHANGE...........................................................               33

 

ARTICLE 6               REPRESENTATIONS, WARRANTIES AND COVENANTS......................................               34

 

   6.1       REPRESENTATIONS AND WARRANTIES OF POST....................................................               34

 

   6.2       KNOWLEDGE OF POST DEFINED.................................................................               38

 

   6.3       SURVIVAL OF POST'S REPRESENTATIONS AND WARRANTIES.........................................               38

 

   6.4       COVENANTS OF POST.........................................................................               39

 

   6.5       REPRESENTATIONS AND WARRANTIES OF JUPITER.................................................               41

 

   6.6       SURVIVAL OF JUPITER'S REPRESENTATIONS AND WARRANTIES......................................               43

 

   6.7       COVENANTS OF JUPITER......................................................................               43

 

ARTICLE 7               DEFAULT........................................................................               44

 

   7.1       DEFAULT BY JUPITER........................................................................               44

 

   7.2       DEFAULT BY POST...........................................................................               44

 

   7.3       NOTICE OF DEFAULT; OPPORTUNITY TO CURE....................................................               45

 

   7.4       RECOVERABLE DAMAGES.......................................................................               45

 

ARTICLE 8               RISK OF LOSS...................................................................               46

 

   8.1       MINOR DAMAGE..............................................................................               46

 

   8.2       MAJOR DAMAGE..............................................................................               46

 

   8.3       DEFINITION OF MAJOR DAMAGE................................................................               47

 

ARTICLE 9               COMMISSIONS....................................................................                47

 

   9.1       BROKER'S COMMISSION.......................................................................               47

 

   9.2       BROKERAGE REPRESENTATIONS AND INDEMNITIES.................................................               48

 

   9.3       EXECUTION BY BROKERS......................................................................               49

 

   9.4       SURVIVAL..................................................................................               49

 

ARTICLE 10               DISCLAIMERS AND WAIVERS........................................................               49

 

   10.1      NO RELIANCE ON DOCUMENTS..................................................................               49

 

   10.2      DISCLAIMERS...............................................................................               50

 

   10.3      RESERVATION OF JUPITER'S RIGHT OF CONTRIBUTION UNDER ENVIRONMENTAL LAWS...................               52

 

   10.4      EFFECT AND SURVIVAL OF DISCLAIMERS........................................................               52

</TABLE>

 

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<TABLE>

<S>                                                                                                                  <C>

ARTICLE 11              ESCROW AGENT...................................................................               52

 

   11.1      INVESTMENT OF OPTION MONEY................................................................               52

 

   11.2      PAYMENT AT CLOSING........................................................................               52

 

   11.3      PAYMENT ON DEMAND.........................................................................               52

 

   11.4      EXCULPATION OF ESCROW AGENT...............................................................               53

 

   11.5      STAKEHOLDER...............................................................................               53

 

   11.6      INTEREST..................................................................................               53

 

   11.7      EXECUTION BY ESCROW AGENT.................................................................               54

 

ARTICLE 12              MISCELLANEOUS..................................................................                54

 

   12.1      CONFIDENTIALITY...........................................................................               54

 

   12.2      PUBLIC DISCLOSURE.........................................................................               54

 

   12.3      ASSIGNMENT................................................................................               54

 

   12.4      NOTICES...................................................................................               54

 

   12.5      MODIFICATIONS.............................................................................               57

 

   12.6      CALCULATION OF TIME PERIODS...............................................................               57

 

   12.7      SUCCESSORS AND ASSIGNS....................................................................               57

 

   12.8      ENTIRE AGREEMENT..........................................................................               57

 

   12.9      FURTHER ASSURANCES........................................................................               57

 

   12.10        COUNTERPARTS...........................................................................               58

 

   12.11        SEVERABILITY...........................................................................               58

 

   12.12        APPLICABLE LAW.........................................................................               58

 

   12.13        NO THIRD PARTY BENEFICIARY.............................................................               58

 

   12.14        EMPLOYEES..............................................................................               58

 

   12.15        POST'S ACCESS TO RECORDS AFTER CLOSING.................................................               58

 

   12.16        CAPTIONS...............................................................................               59

 

   12.17        CONSTRUCTION...........................................................................               59

 

   12.18        TERMINATION OF AGREEMENT...............................................................               59

 

   12.19        SURVIVAL...............................................................................               59

 

   12.20         TIME OF ESSENCE........................................................................               59

 

   12.21        COVENANT NOT TO RECORD.................................................................               59

 

   12.22        LIMITATION OF POST'S LIABILITY.........................................................               59

 

   12.23        RADON GAS..............................................................................               60

 

   12.24        INDEMNIFICATION FOR REDEMPTION DISPUTES................................................               60

 

   12.25        SCHEDULES..............................................................................               60

</TABLE>

 

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                              REDEMPTION AGREEMENT

 

      THIS REDEMPTION AGREEMENT (this "AGREEMENT") is made as of February 27,

2004 (the "EFFECTIVE DATE"), by and between POST APARTMENT HOMES, L.P., a

Georgia limited partnership ("POST"), and JRC ACQUISITION CORPORATION, an

Illinois corporation ("JUPITER").

 

      FIDELITY NATIONAL TITLE INSURANCE COMPANY OF NEW YORK, a New York

corporation ("ESCROW AGENT"), THE APARTMENT GROUP, LLC, a licensed real estate

broker in each of Georgia and Florida (the "BOND PROJECT BROKER") and APARTMENT

REALTY ADVISORS, INC., a Georgia licensed real estate broker (the "POST LANE

BROKER") are parties to this Agreement for the limited purposes set forth

herein. (The Bond Project Broker and the Post Lane Broker are sometimes

collectively referred to herein as the "BROKERS".)

 

                                   WITNESSETH:

 

                                    RECITALS:

 

      A.     Post is the owner of the Property (as defined in ARTICLE 1).

 

      B.     Post has previously issued to a third party 2,800,000 preferred

partnership units in Post designated as 8% Series D Redeemable Preferred Units,

having a liquidation value of $25.00 per unit plus accrued and unpaid quarterly

distributions thereon (the "PREFERRED UNITS").

 

      C.     Jupiter desires to acquire the Preferred Units from the holder or

holders thereof for a price approximately equal to the liquidation value of such

Preferred Units, which may include a prepayment premium and investment banking

or brokerage fee approved by Post.

 

      D.     Post desires to redeem the Preferred Units by distributing the

Property, subject to the liabilities described herein, at the direction of

Jupiter, and Jupiter desires to tender the Preferred Units in redemption to Post

in exchange for such distribution of the Property, all upon and subject to the

terms and conditions of this Agreement.

 

      E.     Post and Jupiter intend that the redemption of such Preferred Units

be treated as a complete liquidation of Jupiter's limited partnership interest

in Post, and that the distribution of the Property to Jupiter under Section 2.2

constitute, under Section 736(b) of the Internal Revenue Code of 1986, as

amended (the "CODE"), consideration paid by Post in exchange for Jupiter's

interest in the property of Post.

 

                                    AGREEMENTS:

 

      THEREFORE, in consideration of the terms and conditions contained in this

Agreement and for other good and valuable consideration, the receipt and

sufficiency of which are hereby acknowledged, Post, Jupiter, Escrow Agent and

Brokers hereby agree as follows:

 

<PAGE>

 

                                    ARTICLE 1

 

                         AGREEMENT TO CONVEY AND ACCEPT

 

      1.1 AGREEMENT TO CONVEY AND ACCEPT. Subject to the terms and conditions

hereinafter set forth, Post agrees to distribute and convey to Jupiter and

Jupiter agrees to accept from Post, in redemption of the Preferred Units, the

following:

 

            (a)    those certain tracts or parcels of land containing the

      approximate number of acres and located in the Counties and States as set

      forth below, as more particularly described on Schedules 1.1(a)-1 through

      1.1(a)-7, attached hereto and made a part hereof (the property described

      in this clause (a) being herein referred to collectively as the "LAND");

 

<TABLE>

<CAPTION>

         PROJECT                           COUNTY AND STATE                  APPROX. ACRES        SCHEDULE

<S>                                    <C>                                   <C>                  <C>

Post Canyon(R) Apartments               Fulton County, Georgia                     38.8            1.1(a)-1

Post Chase(R) Apartments               Gwinnett County, Georgia                   33.2            1.1(a)-2

Post Corners(R) Apartments             Gwinnett County, Georgia                    39.0            1.1(a)-3

Post Court(R) Apartments               Gwinnett County, Georgia                   34.1            1.1(a)-4

Post Lane(R) Apartments                Cobb County,   Georgia                      13.8            1.1(a)-5

Post Mill(R) Apartments                Cobb County,   Georgia                      47.0            1.1(a)-6

Post Lake(R) Apartments                Seminole County, Florida                   82.5            1.1(a)-7

</TABLE>

 

            (b)    those rights, easements and appurtenances pertaining to the

      Land, including (i) all right, title and interest of Post (if any) in and

      to adjacent streets, alleys or rights-of-way, (ii) all right, title and

      interest of Post with respect to any easements that benefit or burden the

      Land, and (iii) all right, title and interest of Post (if any) in any

      water rights or oil, gas and mineral rights that benefit or burden the

      Land (the property described in this clause (b) herein referred to

      collectively as the "RELATED RIGHTS");

 

            (c)    the buildings, structures, fixtures and other improvements on

      the Land, including specifically, without limitation, those certain

      buildings having the names, street addresses and number of apartment units

       as set forth below (the property described in this clause (c) being herein

      referred to collectively as the "IMPROVEMENTS", and the Land, the Related

      Rights and the Improvements being hereinafter sometimes collectively

      referred to as the "REAL PROPERTY"):

 

<TABLE>

<CAPTION>

         PROJECT                           STREET ADDRESS                            APARTMENT UNITS

<S>                                    <C>                                           <C>

Post Canyon(R) Apartments               8350 Roswell Road

                                      Atlanta, Georgia   30350                          494 Units

</TABLE>

 

                                        2

<PAGE>

 

<TABLE>

<S>                                    <C>                                           <C>

Post Chase(R)Apartments                6280 S. Norcross Tucker Rd. N.W.               410 Units

                                      Tucker, Georgia   30084

Post Corners(R)Apartments              3341 Peachtree Corners Circle N.W.              460 Units

                                      Norcross, Georgia   30092

Post Court(R)Apartments                3800 Club Drive                                446 Units

                                      Duluth, Georgia   30096

Post Lane(R)Apartments                  705 Powers Ferry Road S.E.                     166 Units

                                      Marietta, Georgia   30067

Post Mill(R)Apartments                 1550 Terrell Mill Road, S.E.                   752 Units

                                       Marietta, Georgia   30067

Post Lake(R)Apartments                 700 Post Lake Place                            740 Units

                                      Apopka, Florida   32703

TOTAL APARTMENT   UNITS                                                              3,468 Units

                                                                                              

</TABLE>

 

            (d)    all of Post's right, title and interest in and to those items

      of tangible personal property located on the Land or within the

      Improvements owned by Post and used exclusively in CONNECTION with the

      ownership, use, maintenance or operation of the Land and the Improvements,

      and specifically including those items of tangible personal property

      identified on Schedules 1.1(d)-1 through 1.1(d)-7 attached hereto and

      incorporated herein by this reference, but excluding (i) cash and cash

      equivalents, (ii) computer software and computer files, (iii) any time

      clocks, (iv) personal property owned by tenants under the Leases, (v) any

      equipment installed by, or in connection with, any telecommunication or

      utility provider and which is owned by any party other than Post, (vi) any

      items owned by employees of Post or any property manager, (vii) any items

      leased to Post, and (viii) all brochures, advertising copy, promotional

      materials, manuals, reports, portfolios, binders, training materials and

      other similar items on which the name "Post" or any of the Marks (as

      defined in Section 1.5 ) appears (the property described in this clause

      (d), other than the excluded items, being herein referred to collectively

      as the "TANGIBLE PERSONAL PROPERTY"):

 

<TABLE>

<CAPTION>

                                               SCHEDULE FOR INVENTORY OF TANGIBLE

         PROJECT                                       PERSONAL PROPERTY

<S>                                            <C>

Post Canyon(R) Apartments                                   1.1(d)-1

Post Chase(R) Apartments                                    1.1(d)-2

Post Corners(R) Apartments                                  1.1(d)-3

Post Court(R) Apartments                                    1.1(d)-4

Post Lane(R) Apartments                                      1.1(d)-5

Post Mill(R) Apartments                                     1.1(d)-6

Post Lake(R) Apartments                                     1.1(d)-7

</TABLE>

 

                                        3

<PAGE>

 

            (e)    all of Post's right, title and interest as landlord or lessor

      in, to and under all agreements listed and described on Schedules 1.1(e)-1

      through 1.1(e)-7 (collectively, the "RENT ROLL") attached hereto and made

      a part hereof, pursuant to which any portion of the Land or Improvements

      is used or occupied by anyone other than Post (the property described in

      this clause (e) being herein referred to collectively as the "LEASES");

 

<TABLE>

<CAPTION>

PROJECT                                                RENT ROLL SCHEDULE

<S>                                                    <C>

Post Canyon(R) Apartments                                    1.1(e)-1

Post Chase(R) Apartments                                     1.1(e)-2

Post Corners(R) Apartments                                    1.1(e)-3

Post Court(R) Apartments                                     1.1(e)-4

Post Lane(R) Apartments                                      1.1(e)-5

Post Mill(R) Apartments                                      1.1(e)-6

Post Lake(R) Apartments                                       1.1(e)-7

</TABLE>

 

            (f)    all of Post's right, title and interest in, to and under (i)

      the Designated Service Contracts (as defined in Section 6.7 (b) of this

      Agreement), (ii) all assignable existing warranties and guaranties issued

      to or inuring to the benefit of Post in connection with the Improvements

      or the Tangible Personal Property, and (iii) all governmental permits,

      licenses and approvals, if any, belonging to or inuring to the benefit of

      Post and pertaining to the Real Property or the Tangible Personal

      Property, but only to the extent that such permits, licenses and approvals

      are assignable and only to the extent that such permits, licenses and

      approvals relate to the Real Property or the Tangible Personal Property as

      opposed to other property of Post, and excluding any rights in or to the

      use of the Marks (the property described in this clause (f), other than

      the excluded items, being sometimes herein referred to collectively as the

      "INTANGIBLE PROPERTY").

 

      1.2 PROPERTY DEFINED. The Land, the Related Rights, the Improvements, the

Tangible Personal Property, the Leases and the Intangible Property are

hereinafter sometimes referred to collectively as the "PROPERTY." The apartment

communities commonly known as Post Canyon(R) Apartments, Post Chase(R)

Apartments, Post Corners(R) Apartments, Post Court(R) Apartments, Post Lane(R)

Apartments, Post Mill(R) Apartments and Post Lake(R) Apartments are sometimes

referred to individually as "PROJECT" and collectively as the "PROJECTS."

 

      1.3 PERMITTED EXCEPTIONS. The Property shall be conveyed, and Jupiter

shall accept the Property, subject to the matters which are, or are deemed to

be, Permitted Exceptions pursuant to ARTICLE 3 hereof (herein referred to

collectively as the "PERMITTED EXCEPTIONS").

 

      1.4 OPTION MONEY.

 

            (a)    Within three (3) business days following the Effective Date,

      Jupiter shall deposit with the metropolitan Atlanta, Georgia office of

      Escrow Agent (1800 Parkway Place, Suite 700, Marietta, Georgia 30067) the

      sum of TWO MILLION AND NO/100 DOLLARS ($2,000,000.00) (the "FIRST

      DEPOSIT") by wire transfer of immediately available funds.

 

                                        4

<PAGE>

 

            (b)    If Jupiter does not exercise the right to terminate this

      Agreement in accordance with Section 4.2 hereof, then Jupiter shall, on or

      before the Inspection Date (as defined in Section 4.2 hereof), deposit

      with such office of Escrow Agent the additional sum of ONE MILLION AND

      NO/100 DOLLARS ($1,000,000.00) (the "SECOND DEPOSIT") by wire transfer of

      immediately available funds.

 

            (c)    The First Deposit and the Second Deposit, when and to the

      extent deposited, shall constitute option money and are herein referred to

      collectively as the "OPTION MONEY."

 

            (d)    Escrow Agent shall invest the Option Money pursuant to

      Jupiter's directions and in accordance with the terms and conditions of

      ARTICLE 11. All interest accruing and other income earned on such sum

      shall become a part of the Option Money and shall be distributed as Option

      Money in accordance with the terms of this Agreement. If Jupiter fails to

      deliver any portion of the Option Money to the Escrow Agent within the

      time period or periods specified above, Jupiter shall be in default

      hereunder, and Post shall be entitled to exercise its rights and remedies

      under Section 7.1 .

 

            (b)    In any event, if Jupiter is entitled to have the Option Money

      returned to Jupiter pursuant to any provision of this Agreement, ONE

      HUNDRED AND NO/100 DOLLARS ($100.00) of the Option Money shall

      nevertheless be paid to Post as good and sufficient consideration for

      entering into this Agreement. In addition, Post acknowledges that Jupiter,

      in evaluating the Property and performing its due diligence investigation

      of the Property, will devote internal resources and incur expenses, and

      that such efforts and expenses of Jupiter also constitute good, valuable

      and sufficient consideration for this Agreement.

 

            1.5 OWNERSHIP OF POST(R) TRADENAMES AND SERVICE MARKS.

 

            (a)    Jupiter acknowledges and agrees that the names "Post(R)",

      "Post Canyon(R)", "Post Chase(R)", "Post Corners(R)", "Post Court(R)",

      "Post Lane(R)", "Post Mill(R)", "Post Lake(R)", and "Post Apartment

      Homes(R)" and any other trade name or service mark which includes the word

      "Post" or any other trade name or service mark (including the "Post tulip"

      logo) of Post (hereinafter collectively referred to as the "MARKS"), and

      each of them, are trade names and service marks of Post; that the Marks,

      and each of them, are the sole and exclusive property of Post, which owns

      all right, title, and interest in and to the Marks, and each of them; and

      that, by this Agreement, Jupiter shall acquire no ownership right or

      interest of any kind in or to the Marks, or any of them. Jupiter further

      acknowledges and agrees that any use by Jupiter of the Marks, or any of

      them, in any manner in connection with the Property or otherwise, will

      result in immediate and irreparable injury to Post and its affiliates, and

      that Post and/or its affiliates shall be entitled to temporary,

      preliminary, and permanent injunctive relief against Jupiter in the event

      of any such use of the Marks, or any of them, by Jupiter, or in the event

      of any other violation by Jupiter of this Section 1.5 .

 

                                        5

<PAGE>

 

            (b)    Post and Jupiter shall cooperate with each other in connection

      with the prompt removal of the "Post" name from each Project following the

      Transition Date (as defined in Section 1.6) for such Project, including

      changes in signage, lease forms, marketing materials and the like. Jupiter

      agrees to attach a substantial, temporary sign over the existing

      "Post(R)", "Post Canyon(R)", "Post Chase(R)", "Post Corners(R)", "Post

      Court(R)", "Post Lane(R)", "Post Mill(R)", "Post Lake(R)", or "Post tulip"

      logo on all sign(s) in each Project no later than the Sign Change Date (as

      defined below) for such Project so that the word "Post" and the "Post

      tulip" will not be visible. Jupiter shall keep such temporary signage in

      place until Jupiter installs permanent replacements of such signage, and

      Jupiter shall install such permanent replacement signage in each Project

      on or before the date that is one hundred twenty (120) days after the

      Transition Date for such Project. All other signage on any Project

      containing the "Post(R)" name or any of the Marks shall be promptly

      removed or replaced, but in any event, on or before the Sign Change Date

      for such Project. "SIGN CHANGE DATE" means (i) with respect to those

      Projects for which Jupiter assumes management responsibility at Closing,

      the thirtieth (30th) day from and after Closing, and (ii) with respect to

      each other Project, the seventh (7th) day from and after the Transition

      Date for such Project

 

            (c)    From and after the Transition Date for each Project through

      the date on which all signs or other marketing materials which include any

      Mark have been removed from the Project, Jupiter shall display in a

      prominent position in the leasing center of such Project a sign stating

      that such Project is no longer under the management or ownership of Post

      or any affiliate of Post. The size, content and location of such sign

      shall be subject to the approval of Post, not to be unreasonably withheld

      or delayed.

 

            (d)    Jupiter shall indemnify, hold harmless and defend Post from

      and against any and all claims, demands, causes of action, liabilities,

      losses, costs, damages and expenses (including reasonable attorneys fees

      and expenses and court cost incurred in defending any such claim or in

      enforcing this indemnity) of whatsoever nature that may be incurred by

      Post and arising out of or in connection with the presence of any of Marks

      on any sign or other materials located on any Project from and after the

      Transition Date for such Project, or the use of any Mark on or after the

      Transition Date for such Project in connection with the ownership,

      operation, management, leasing or disposition of such Project.

 

            (e)    This Section 1.5 shall survive the Closing.

 

      1.6    TRANSITION OF PROPERTY MANAGEMENT. Upon Closing, Post and Jupiter

shall cooperate with one another to effect a smooth transition of property

management for the Projects. The parties intend that upon Closing, Jupiter will

assume responsibility for management of two or more of the Projects and will

engage Post pursuant to a property management agreement (the "MANAGEMENT

AGREEMENT") to manage each of the other Projects. Under such management

arrangement, Jupiter shall assume responsibility for management of the remaining

Projects at the rate of two or more Projects each thirty (30) days, such that

Jupiter will have assumed full responsibility for management of the Property no

later than ninety (90) days after closing. Jupiter and Post shall commence to

negotiate diligently and in good faith the form

 

                                        6

<PAGE>

 

and content of the Management Agreement promptly following the Effective Date.

If Jupiter and Post have not agreed in writing as to the form of the Management

Agreement by the Inspection Date, then Post shall have no obligation to manage

any Project following closing unless and until Jupiter and Post agree otherwise

in writing. The date on which Post ceases to manage any Project (whether at

Closing or thereafter under the Management Agreement) is referred to herein as

the "TRANSITION DATE" for such Project.

 

      1.7    DEPOSIT OF LETTER OF CREDIT AS OPTION MONEY.

 

      (a)    Jupiter may, at its option, deposit with Escrow Agent, in lieu of

any deposit of Option Money to be made pursuant to Section 1.4, an irrevocable

letter of credit substantially in the form of Schedule 1.7, attached hereto and

incorporated herein by this reference (and, in the case of the Second Deposit,

Jupiter may, rather than provide a new letter of credit, cause the issuer of the

letter of credit to increase the amount of the letter of credit for the First

Deposit to the sum of THREE MILLION DOLLARS ($3,000,000.00) and extend the term

of such letter of credit as described below). Any such letter of credit shall be

issued in favor of Escrow Agent and shall be in the amount of the required

deposit of Option Money. Such letter of credit shall be issued by an Approved

Bank and shall have an expiry date of no earlier than (i) sixty (60) days after

the Inspection Date, in the case of the First Deposit, and (ii) three hundred

thirty (330) days after the Effective Date, in the case of the Second Deposit

(and the expiry date of any letter of credit deposited as the First Deposit

shall also be extended to three hundred thirty (330) days after the Effective

Date when the Second Deposit is due pursuant to Section 1.4).

 

      (b)    In the event Jupiter elects to deposit such a letter of credit with

Escrow Agent, any requirement under this Agreement that the Option Money be

refunded or returned to Jupiter shall mean that the original letter of credit

shall be returned to Jupiter without having been drawn upon. In addition, any

requirement under this Agreement that the Option Money be paid over to Post

shall mean that Escrow Agent shall draw upon the letter of credit according to

its terms in full and pay over to Post the full amount of the Option Money.

Where this Agreement provides that Escrow Agent shall pay over ONE HUNDRED

DOLLARS ($100.00) of the Option Money to Post and refund the balance of the

Option Money to Jupiter, Jupiter shall have the option of depositing with Escrow

Agent ONE HUNDRED DOLLARS ($100.00) in cash, to be paid over by Escrow Agent to

Post, and receiving back from Escrow Agent the original letter of credit without

such letter of credit having been drawn upon.

 

      (c)    If Escrow Agent shall not have received written instructions signed

by Post and Jupiter instructing Escrow Agent to return the Letter of Credit to

Jupiter without having been drawn upon, then at any time on or after the tenth

(10th) business day prior to the expiry date of such letter of credit, upon

written request from either Post or Jupiter (the "DRAW NOTICE"), Escrow Agent

shall be entitled to, and is hereby irrevocably and unconditionally authorized,

instructed and directed to, draw upon such letter of credit in the full amount

thereof and hold the proceeds of such letter of credit as Option Money in

accordance with this Agreement. Escrow Agent shall have no duty or authority

following receipt of any Draw Notice to confirm or verify the right of the party

giving the Draw Notice to do so, nor shall Escrow Agent have the right not

 

                                        7

<PAGE>

 

to draw upon the Letter of Credit in full following receipt of any Draw Notice,

whether or not any other party shall object to the Draw Notice or otherwise

dispute the Draw Notice or the proper disposition of the Letter of Credit or

Option Money.

 

      (d)    If the Closing Date or any extension of the Closing Date as provided

herein is less than ten (10) business days prior to or is after the expiry date

of the letter of credit, then Escrow Agent shall be entitled to, and is hereby

irrevocably and unconditionally authorized, instructed and directed to, draw

upon such letter of credit in the full amount thereof, and hold the proceeds

thereof as Option Money in accordance with this Agreement, unless a replacement

letter of credit in the same amount and otherwise in accordance with the terms

of this Section 1.7 is delivered to Escrow Agent at least ten (10) business days

prior to the expiry date of the letter of credit; such a replacement letter of

credit shall have an expiry date at least sixty (60) days after the Closing

Date, as so extended.

 

      (e)    "Approved Bank" means any one of Deutsche Bank AG, New York Branch,

or any national bank with its principal place of business in metropolitan

Atlanta, Georgia, Chicago, Illinois or New York City, New York and which is

approved by Post in its good faith business judgment; provided, however, that in

order to constitute an Approved Bank, such bank must have a branch office in

metropolitan Atlanta, Georgia, Chicago, Illinois, or New York City, New York at

which any letter of credit described in this Section 1.7 may be drawn and paid

in full in immediately available funds.

 

                                    ARTICLE 2

 

                                   REDEMPTION

 

      2.1 PROPERTY VALUE. Post and Jupiter agree that the gross value of the

Property is TWO HUNDRED THIRTY-TWO MILLION AND NO/100 DOLLARS ($232,000,000.00)

(the "PROPERTY VALUE"). The Property Value is allocated among the Projects

comprising the Property as set forth on Schedule 2.1, attached hereto.

 

      2.2 REDEMPTION CONSIDERATION. At Closing, Post shall convey the Property

to Jupiter in the manner provided in this Agreement. In exchange for such

conveyance, Jupiter shall deliver to Post at Closing consideration having an

aggregate value equal to the Property Value, in the following manner:

 

            (a)    Jupiter shall assign and tender the Preferred Units to Post

      for redemption pursuant to such instruments as are necessary or reasonably

      desirable to effect such assignment, tender and redemption, and otherwise

      in accordance with this Agreement and in form and substance reasonably

      acceptable to Jupiter. The Preferred Units shall be valued for purposes of

      the redemption at the Agreed Total Unit Value (as defined herein).

 

                                        8

<PAGE>

 

            (b)    Jupiter shall assume the Assumed Project Financing in the

      manner contemplated in Section 2.5 . The parties estimate that the

      outstanding balance of the Assumed Project Financing as of Closing will be

      approximately ONE HUNDRED NINETEEN MILLION EIGHTY-FIVE THOUSAND AND NO/100

      DOLLARS ($119,085,000.00).

 

            (c)    Jupiter shall assume the Other Assumed Debt as contemplated in

      Section 2.7 . The Other Assumed Debt shall have an outstanding balance as

      of Closing equal to the sum of (i) the Property Value, minus (ii) the

      Agreed Total Unit Value, minus (iii) the outstanding balance of the

      Assumed Project Financing as of Closing. The parties estimate that the

      outstanding balance of the Other Assumed Debt as of Closing will be

      approximately FORTY-TWO MILLION NINE HUNDRED FIFTEEN THOUSAND AND NO/100

      DOLLARS ($42,915,000.00).

 

      2.3 VALUATION OF PREFERRED UNITS. Post and Jupiter agree that the

aggregate value of the Preferred Units (the "AGREED TOTAL UNIT VALUE") shall be

the lesser of the Actual Price or the Maximum Total Unit Value, as follows:

 

            (a)    The "ACTUAL PRICE" means the sum of (i) the aggregate price

      actually paid by Jupiter for the Preferred Units, inclusive of any amounts

      attributable to prepayment premiums or similar charges and any amounts

      paid by Jupiter for investment banking or brokerage fees, and inclusive of

      any amounts paid by Jupiter for the accrued and unpaid quarterly

      distribution on the Preferred Units as of the date of acquisition, plus

      (ii) if Jupiter purchases the Preferred Units prior to the Closing Date,

      the accrued and unpaid quarterly distribution on the Preferred Units from

      the date of Jupiter's acquisition of such units through the Closing Date

      (but without duplication of any such amounts included under clause (i)).

       Any Special Transaction Costs included in the Actual Price at Closing

      shall not also be reimbursed under Section 5.5(b).

 

            (b)    The "MAXIMUM TOTAL UNIT VALUE" means the sum of (i) Seventy

      Million and No/100 Dollars ($70,000,000.00), plus (ii) the accrued and

      unpaid quarterly distribution on the Preferred Units as of the Closing

      Date, plus (iii) SEVEN HUNDRED THOUSAND AND NO/100 DOLLARS ($700,000.00).

 

The Agreed Total Unit Value shall be used for purposes of this Agreement

notwithstanding that the actual value of the Preferred Units on the Closing Date

may differ.

 

      2.4 JUPITER'S PURCHASE OF PREFERRED UNITS.

 

            (a)    Jupiter shall make commercially reasonable good faith efforts

      (i) to negotiate and enter into an agreement (a "UNITS PURCHASE

      AGREEMENT") for Jupiter's purchase of the Preferred Units from the current

      holder or holders thereof (collectively, the "UNITHOLDER"), and (ii) after

      entering into a Units Purchase Agreement, to enforce Jupiter's rights

      under the Units Purchase Agreement and to purchase the Preferred Units

      pursuant to such agreement no later than the time immediately prior to the

      Closing under this Agreement. Such purchase of the Preferred Units may

      occur at any time prior to Closing, at Jupiter's election. Jupiter shall

      not be required to enter into a Units Purchase

 

                                        9

<PAGE>

 

      Agreement if the purchase price for the Preferred Units is greater than

      the Maximum Total Unit Value or if the other terms and conditions of such

      agreement are not acceptable to Jupiter, acting reasonably.

 

            (b)    If Jupiter is unable, after making commercially reasonable

      good faith efforts, to enter into a Units Purchase Agreement with the

      Unitholder, then Jupiter shall not for that reason be in default under

      this Agreement, provided that Jupiter shall give prompt notice of such

      fact to Post, setting forth in reasonable detail Jupiter's efforts to

      purchase such units and negotiations with the Unitholder.

 

            (c)    If Jupiter has entered into a Units Purchase Agreement but the

      Unitholder fails or refuses to perform under such agreement, then Jupiter

       shall not for that reason be in default under this Agreement provided

      Jupiter (i) gives prompt notice to Post when Jupiter first becomes aware

      of the Unitholder's failure or refusal to perform, and (ii) makes

      commercially reasonable efforts to enforce such Units Purchase Agreement.

      Jupiter shall not be required to institute any litigation or other

      enforcement proceeding against the Unitholder to enforce the Units

      Purchase Agreement, provided Jupiter will consider in good faith any

      request by Post that Jupiter do so if Post agrees to reimburse Jupiter for

      the cost of such proceeding and such proceeding does not materially delay

      the Closing.

 

            (d)    If Jupiter fails or is unable, after complying with the

      foregoing requirements of this Section 2.4 to purchase the Preferred Units

      for a price equal to or less than the Maximum Total Unit Value (and as a

      consequence is unable to tender the Preferred Units to Post at Closing as

       contemplated in this Agreement), then the provisions of Section 2.8 shall

      apply.

 

            (e)    For the avoidance of doubt, Jupiter's obligation to purchase

      the Preferred Units under this Agreement is subject to the provisions of

      Section 5.6. Post confirms that Jupiter intends to provide in the Units

      Purchase Agreement that the closing under such agreement is also subject

      to the conditions set forth in Section 5.6.

 

            (f)    In the event of any litigation between Jupiter and Post as to

      whether Jupiter has made commercially reasonable good faith efforts as

      required under this Section 2.4, Post shall bear the burden of proof on

      such question, and unless Post carries such burden of proof, it shall be

      conclusively presumed that Jupiter acted in a commercially reasonable and

      good faith manner. However, in no event shall such burden of proof limit

      in any way Post's right to give a Draw Notice to Escrow Agent pursuant to

      Section 1.7, or Escrow Agent's obligation to draw upon the letter of

      credit following such a Draw Notice.

 

            2.5 ASSUMED PROJECT FINANCING.

 

            (a)    All of the Projects other than Post Lane(R) Apartments (the

      "BOND PROJECTS"), together with certain other apartment communities owned

      by Post (the "OTHER PROJECTS"), are subject to financings obtained by Post

      from local housing

 

                                       10

<PAGE>

 

      authorities (the "AUTHORITIES") and funded by the Authorities through the

      issuance of tax-exempt multifamily housing revenue bonds (the "BONDS").

      Fannie Mae has provided credit enhancement for the Bonds. Such bond

      financing and credit enhancement arrangements are collectively referred to

      as the "PORTFOLIO FINANCING." The Portfolio Financing is the subject of

      extensive documents involving various parties, including Post, Fannie Mae,

      the Authorities, trustees for the holders of the Bonds, tender agents,

      remarketing agents and others (collectively, the "BOND PARTICIPANTS"). The

      Portfolio Financing is comprised of the Bond Financing and the Fannie Mae

      Financing, as such terms are defined below.

 

            (b)    The Portfolio Financing encompasses two separate but related

      sets of financial arrangements:

 

                  (1)    First, Post has obtained loans from the Authorities (the

            "AUTHORITY LOANS") which have been funded by the Authorities from

            the proceeds of the Bonds. In connection with each Authority Loan,

            Post has undertaken various obligations to the applicable Bond

            Participants. The Authority Loans and the related obligations of

            Post to those Bond Participants other than Fannie Mae are referred

            to collectively as the "BOND FINANCING".

 

                  (2)    Second, Post has entered into a master reimbursement

            agreement and related documents (collectively, the "FANNIE MAE

            FINANCING") with Fannie Mae, pursuant to which Fannie Mae has agreed

            to provide credit enhancement for the Bonds and Post has agreed,

            among other matters, to reimburse Fannie Mae for any amounts paid by

            Fannie Mae in respect of the Bonds as a result of providing such

            credit enhancement.

 

            (c)    Post's obligations under the Portfolio Financing are secured

      by mortgages and related security instruments encumbering each of the Bond

      Projects and the Other Projects (the "MORTGAGES"). To the extent the

      Mortgages secure the Fannie Mae Financing, the Mortgages are

      cross-defaulted and cross-collateralized with one another. In addition,

      the Fannie Mae Financing places limitations on the ability of Post to

      release any of the Bond Projects or the Other Projects from the effect of

      the Fannie Mae Financing, including releases in connection with the sale

      or other conveyance of any Bond Project or Other Project.

 

            (d)    The principal documents evidencing and securing the Portfolio

      Financing are described in Schedules 2.5(d)-1 though 2.5(d)-6, attached

      hereto and made a part hereof by this reference, as follows:

 

<TABLE>

<CAPTION>

                                                            PORTFOLIO

      BOND PROJECT                                     FINANCING DOCUMENTS

<S>                                                    <C>

Post Canyon(R) Apartments                                    2.5(d)-1

Post Chase(R) Apartments                                     2.5(d)-2

</TABLE>

 

                                       11

<PAGE>

 

<TABLE>

<S>                                                          <C>

Post Corners(R) Apartments                                   2.5(d)-3

Post Court(R) Apartments                                     2.5(d)-4

Post Mill(R) Apartments                                      2.5(d)-5

Post Lake(R) Apartments                                      2.5(d)-6

</TABLE>

 

            (e)    Post and Jupiter will use commercially reasonable efforts to

      obtain the separation of the Portfolio Financing into two separate

      financing packages, one related solely to the Bond Projects (the "Assumed

      Project Financing") and the other related solely to the Other Projects

      (the "Other Project Financing"). Among other matters, the parties intend

      for such separation to eliminate any cross-default and

      cross-collateralization between the financing of the Bond Projects and the

      financing of the Other Projects. In connection with such arrangement, Post

      and Jupiter will work cooperatively and use commercially reasonable good

      faith efforts for (i) Jupiter to assume the Assumed Project Financing and

      (ii) Post to be released from continuing liability for the Assumed Project

      Financing. The separation of the Portfolio Financing, assumption of the

      Assumed Project Financing by Jupiter and release of Post from continuing

      liability for the Assumed Project Financing are collectively referred to

      as the "ASSUMPTION AND RELEASE TRANSACTION". The Assumption and Release

      Transaction will include the following matters:

 

                  (1)    Consents and approvals from the Bond Participants;

 

                  (2)    Jupiter's assumption of all obligations of Post under or

            relating to the Bond Financing with respect to the Bond Projects and

            arising from and after Closing, but not with respect to the Other

            Projects; the parties anticipate this will include Jupiter entering

            into amendments to existing Bond Financing documents with various

            Bond Participants, or new Bond Financing documents; the parties

            intend that Jupiter's assumption of the Bond Financing with respect

            to the Bond Projects will not result in the imposition of any

            material additional restrictions on any Project, provided Jupiter

            does not seek to make any material change to the existing Bonds and

            related Bond documentation (such as, for example, an extension of

            the maturity of the Bonds);

 

                  (3)    Jupiter's assumption of all obligations of Post under or

            relating to the Fannie Mae Financing with respect to the Bond

            Projects and arising from and after Closing, but not with respect to

            the Other Projects; the parties anticipate this will include (i)

            Jupiter entering into a new master reimbursement agreement and

            related documents with Fannie Mae with respect to the Bond Projects,

            on terms similar to the Fannie Mae Financing, and (ii) Post entering

            into amendments to Post's existing master reimbursement agreement

            and related documents with Fannie Mae so as to release the Bond

            Projects from the effect of such documents; provided, however, that

            Jupiter will not be obligated to use Fannie Mae to provide credit

            enhancement for the Bond Financing and may elect to use another

            source of credit enhancement for the Bond Financing.

 

                                       12

<PAGE>

 

                  (4)    The release of Post from any continuing recourse or

            non-recourse liability for the Bond Financing or the Fannie Mae

            Financing with respect to the Bond Projects, but not with respect to

            the Other Projects, provided, however, that Jupiter shall not be

            obligated to assume any obligation arising from facts or

            circumstances first occurring prior to Closing Date;

 

                  (5)    The release of the Bond Projects from any cross-default

            or cross-collateralization with the Other Projects, and the release

            of the Other Projects from any cross-default or

            cross-collateralization with the Bond Projects; and

 

                  (6)    The release to Post of any cash deposits, hedge

            instruments and other forms of collateral delivered by Post to

            Fannie Mae in connection with the Portfolio Financing, to the extent

            such deposits, instruments and collateral relate to the Bond

            Projects but not the Other Projects.

 

            2.6 PROJECT FINANCE CONDITION.

 

            (a)    Post and Jupiter acknowledge that the Assumption and Release

      Transaction is a complex series of transactions which will involve the

      participation and agreement of Post, Jupiter and the other Bond

      Participants on many matters, and that this Agreement does not describe

      all of the essential terms of the Assumption and Release Transaction. In

      addition to any other conditions set forth in this Agreement, the

      obligations of Post and Jupiter to close under this Agreement are subject

      to and conditioned upon Post, Jupiter and the other Bond Participants

      consummating the Assumption and Release Transaction on or prior to the

      Closing Date on terms and conditions and pursuant to agreements and

      instruments which are approved by Post and Jupiter (insofar as such terms,

      conditions, agreements and instruments are relevant to Post and Jupiter,

      as the case may be) each acting in its sole and absolute discretion. The

      condition set forth in this Section 2.6 (a) is referred to as the "PROJECT

      FINANCE CONDITION."

 

            (b)    In the event the Project Finance Condition is not satisfied on

      or before the Closing Date, as such date may have been extended pursuant

      to the terms of this Agreement, then either Post or Jupiter may terminate

      this Agreement by delivering written notice of such termination to the

      other such party on or before such date, and upon delivery of such notice

      of termination, this Agreement shall terminate and the Option Money shall

      be returned to Jupiter in accordance with Section 1.4 of this Agreement,

      and thereafter neither party hereto shall have any further rights,

      obligations or liabilities hereunder except to the extent that any right,

      obligation or liability set forth herein expressly survives termination of

      this Agreement.

 

            2.7 ASSUMPTION OF OTHER ASSUMED DEBT.

 

            (a)    For purposes of this Agreement, the following terms have the

      following meanings:

 

                                       13

<PAGE>

 

                  (1)    "LENDER" means, collectively, the lender or lenders

            holding the Other Assumed Debt.

 

                  (2)    "OTHER ASSUMED DEBT" means pre-existing Post debt or

            debt incurred by Post to refinance pre-existing Post debt, other

            than the Portfolio Financing, as designated by Post and approved by

            Jupiter, acting reasonably. The Other Assumed Debt shall have an

            outstanding balance as of Closing (currently estimated at

            approximately $42,915,000) equal to the sum of (A) the Property

            Value, minus (B) the Agreed Total Unit Value, minus (C) the balance

            of the Assumed Project Financing as of Closing. Unless otherwise

            agreed in writing by Post and Jupiter in their sole discretion, the

            Other Assumed Debt:

 

                  (i)    may be an unsecured recourse liability, provided that

            Jupiter may require that such debt be converted upon assumption by

            Jupiter to a non-recourse debt secured by such collateral as

            Jupiter, Post and the Lender may agree,

 

                  (ii)   shall be separate from and shall not be cross-defaulted

             with any other indebtedness or obligation of Post or Jupiter,

 

                  (iii) shall be held by one or more institutional lenders,

            provided that if there is more than one institutional lender there

            shall be a single agent acting on behalf of the group of lenders,

 

                  (iv)   shall be subject to prepayment in whole or in part at

            any time one week or more after Closing with no prepayment premium,

 

                  (v)    shall not require Jupiter to pay any assumption fee,

 

                  (vi)   shall bear interest at a floating rate, and

 

                  (vii) shall have a maturity not less than 30 days from and

                        after Closing.

 

            (b)    Jupiter shall use commercially reasonable good faith efforts

      to assume the Other Assumed Debt at Closing, and Post shall use

      commercially reasonable good faith efforts to obtain Lender's consent to

      such assumption. Among other things, the parties acknowledge that such

      assumption will include the following matters:

 

                  (1)    consents and approvals from the Lender;

 

                  (2)    Lender's agreement that Jupiter shall have no liability

            with respect to defaults under the Other Assumed Debt arising from

            events or circumstances first occurring prior to Jupiter's

            assumption of the Other Assumed Debt, or for any other indebtedness

            or liability of Post to Lender; and

 

                  (3)    Lender's release of Post from any liability for the

            Other Assumed Debt from and after Jupiter's assumption of the Other

            Assumed Debt; provided,

 

                                       14

<PAGE>

 

            however, that Jupiter shall not be obligated to assume any

            obligations arising from facts or circumstances first occurring

            prior to Closing Date.

 

            (c)    In addition to any other conditions set forth in this

      Agreement, but only if the Cash Option is not available pursuant to

      Section 2.8 or 2.9, the obligations of Post and Jupiter to close under

      this Agreement are subject to and conditioned upon Post, Jupiter and the

      Lender consummating the assumption of the Other Assumed Debt on or prior

      to the Closing Date on terms and conditions and pursuant to agreements and

      instruments which are approved by Post and Jupiter (insofar as such terms,

      conditions, agreements and instruments are relevant to Post and Jupiter,

      as the case may be) each acting reasonably (provided that in exercising

      its right of reasonable approval, Jupiter may take into account whether,

      during the period prior to the date of permitted prepayment, such debt

      bears an interest rate in excess of Jupiter's regular cost of funds or

      imposes costs on Jupiter in excess of principal and interest after taking

      into account any adjustments to value or loan amount or other protections

      offered by Post to offset any such excess interest rate or other cost (it

      being understood, however, that Post will not pay for or provide any

      adjustments to value or loan amount or other protection with respect to

      any such excess interest rate or other cost from and after the date of

      permitted prepayment) and whether Lender imposes unreasonable collateral

      requirements with respect to such debt. The condition set forth in this

      Section 2.7(c) is referred to as the "OTHER DEBT CONDITION".

 

            (d)    If (1) the Other Debt Condition is not satisfied on or before

      the Closing Date, as such date may have been extended pursuant to the

      terms of this Agreement, and (2) the Cash Option is not available pursuant

      to Section 2.8 or 2.9, then either Post or Jupiter may terminate this

      Agreement by delivering written notice of such termination to the other

      such party on or before such date, and upon delivery of such notice of

      termination, this Agreement shall terminate and the Option Money shall be

      returned to Jupiter in accordance with Section 1.4 of this Agreement, and

      thereafter neither party hereto shall have any further rights, obligations

      or liabilities hereunder except to the extent that any right, obligation

       or liability set forth herein expressly survives termination of this

      Agreement. Such right of termination shall not be available to either Post

      or Jupiter, nor shall the Other Debt Condition apply, if the Cash Option

      is available under Section 2.8 or 2.9.

 

      2.8 JUPITER'S FAILURE OR INABILITY TO ACQUIRE PREFERRED UNITS. If Jupiter

fails or is unable, after complying in all material respects with the

requirements of Section 2.4 , to purchase the Preferred Units for a price equal

to or less than the Maximum Total Unit Value (and is therefore unable to tender

the Preferred Units to Post at Closing as contemplated in this Agreement), then

Section 2.7 shall not apply and Jupiter shall have the right and option (the

"CASH OPTION"), but not the absolute obligation, in lieu of the consideration

described in Section 2.2 , to deliver to Post at Closing consideration having an

aggregate value equal to the Property Value, in the following manner:

 

            (a)    Jupiter shall assume the Assumed Project Financing in the

      manner contemplated in Section 2.5 .

 

                                       15

<PAGE>

 

            (b)    Jupiter shall pay to Post a sum (the "CASH BALANCE") equal to

      (A) the Property Value, minus (B) the outstanding balance of the Assumed

      Project Financing as of Closing. If Jupiter exercises the Cash Option, the

      parties anticipate that the Cash Balance will be approximately ONE HUNDRED

      TWELVE MILLION NINE HUNDRED FIFTEEN THOUSAND AND NO/100 DOLLARS

       ($112,915,000.00).

 

            (c)    Jupiter's payment of the Cash Balance shall be made by (i)

      wire transfer of immediately available federal funds to a bank account of

      Escrow Agent designated by Escrow Agent to Jupiter in writing prior to

      Closing ("ESCROW AGENT'S ACCOUNT"), and (ii) delivery to Escrow Agent of

      Jupiter's written instructions to release the full amount of the Cash

      Balance to Post immediately. If Escrow Agent has not received the Cash

      Balance, together with instructions from Jupiter to disburse such funds to

      Post immediately, on or before 2:00 p.m. (Atlanta, Georgia, local time) on

      the Closing Date, then Post (provided Post is not in default hereunder)

      shall be entitled to receive from Jupiter, for each full or partial day of

      delay in Post's receipt of the Cash Balance, an additional sum equal to

      the amount of interest accrued on the Cash Balance on a daily basis at the

      rate of six percent (6%) per annum. For this purpose, each day shall be

      the 24-hour period commencing at 2:00 p.m. (Atlanta, Georgia, local time)

      each calendar day.

 

            (d)    If Jupiter does not exercise the Cash Option, then the Option

      Money shall be paid over to Post as consideration for the Cash Option and

      for the agreements of Post contained in this Agreement (and shall

      constitute liquidated damages as contemplated in Section 7.1 to the same

      extent as if Jupiter's failure to exercise the Cash Option constituted a

      default by Jupiter under this Agreement).

 

            (e)    If Jupiter exercises the Cash Option but does not close, then

      Jupiter shall be in default of this Agreement and Post shall have all

      rights and remedies available to Post under ARTICLE 7, provided that:

 

                  (1)    if Jupiter exercises the Cash Option but does not close

            as a result of a default by Post under this Agreement, then Jupiter

            shall have all of the rights and remedies available to Jupiter for

            such default under ARTICLE 7, including but not limited to the right

            to demand the return of the Option Money;

 

                  (2)    if Jupiter exercises the Cash Option but does not close

            because a condition precedent to Jupiter's obligation to close is

            not satisfied and Jupiter elects pursuant to Section 5.6 not to

            close, then Jupiter may terminate this Agreement and obtain a refund

            of the Option Money in accordance with Sections 1.4 and 5.6 ; and

 

                  (3)    if Jupiter exercises the Cash Option but a condition to

            Post's obligation to close is not satisfied and Post elects pursuant

            to Section 5.7 not to close, then Jupiter may obtain a refund of the

            Option Money as provided in Section 5.7 .

 

                                       16

<PAGE>

 

      2.9 PARTNERSHIP AMENDMENT. If Post determines that it is necessary or

desirable to do so, Post may seek consent from its limited partners to an

amendment to the Second Amended and Restated Partnership Agreement of Post

Apartment Homes, L.P., as amended, as proposed by Post's general partner in good

faith to address certain tax considerations arising from the redemption

transaction contemplated herein (the "PARTNERSHIP AMENDMENT"). If Post shall not

have obtained the necessary consents and approvals of Post's limited partners to

the Partnership Amendment, if any, then Post, at Post's election, may deliver to

Jupiter written notice that Post is not willing to close the transaction

contemplated herein as a redemption (the "AMENDMENT NOTICE"), provided, however,

that if Post delivers the Amendment Notice to Jupiter less than five (5)

business days prior to the Closing, then the Closing Date shall be extended, if

necessary, to a date that is no less than five (5) business days following

Jupiter's receipt of the Amendment Notice. Following Jupiter's receipt of the

Amendment Notice Jupiter shall have the Cash Option but shall not have the right

to close the transaction as contemplated herein as a redemption of the Preferred

Units. Accordingly, following Jupiter's receipt of the Amendment Notice, (1)

Jupiter shall be treated for all purposes under this Agreement as having failed

or being unable, after complying with the requirements of Section 2.4, to

purchase the Preferred Units (and as therefore being unable to tender the

Preferred Units to Post at Closing as contemplated in this Agreement), (2)

Jupiter shall have the same rights and liabilities as are set forth in Section

2.8, and (3) Section 2.7 shall not apply. Jupiter shall have no obligation to

close the purchase of the Preferred Units prior to the date on which Post has

obtained all necessary consents to and approvals of the Partnership Amendment or

has waived such requirement in writing.

 

      2.10 EXERCISE OF CASH OPTION. Jupiter and Post shall each endeavor in good

faith to provide notice to the other party that of the circumstances under which

the Cash Option is available under Section 2.8 or 2.9. However, if the Cash

Option becomes available to Jupiter in accordance with this Agreement, then in

no event shall Jupiter's right to exercise the Cash Option expire prior to the

date which is three (3) business days following Jupiter's receipt of written

notice from Post stating that the Cash Option is available and may be exercised

by Jupiter. If Jupiter exercises the Cash Option, then the Closing Date shall be

extended, if necessary, to a date not more than five (5) business days following

such exercise of Cash Option by Jupiter.

 

                                    ARTICLE 3

 

                                TITLE AND SURVEY

 

      3.1 TITLE EXAMINATION; COMMITMENT FOR TITLE INSURANCE. Post has obtained

from Escrow Agent (in its capacity as title insurer sometimes herein called the

"TITLE COMPANY"), at Post's expense, and delivered to Jupiter title insurance

commitments (individually a "TITLE COMMITMENT" and collectively the "TITLE

COMMITMENTS") issued by Fidelity National Title Insurance Company, covering the

Property, which Title Commitments are more particularly described in Schedule

3.1, attached hereto and by this reference made a part hereof.

 

      3.2 SURVEY. Jupiter acknowledges that Post has, at Post's expense,

delivered to Jupiter surveys of the Real Property as more particularly described

in Schedule 3.2, attached hereto and

 

                                       17

<PAGE>

 

by this reference made a part hereof. Such surveys are referred to herein

individually as A "SURVEY" and collectively as the "SURVEYS". For purposes of

the Deed to be delivered to Jupiter at the Closing with respect to each Project,

the legal description of such Project shall be the legal description appearing

in Schedules 1.1(a)-1 through 1.1(a)-7, less and except any right-of-way or

other conveyances previously made by Post. If, however, the metes and bounds

description of any Project drawn from the Survey reflects a legal description

different from the legal description appearing in Schedules 1.1(a)-1 through

1.1(a)-7, then Post shall also deliver a quit claim deed at Closing containing

the legal description drawn from the Survey.

 

      3.3 TITLE OBJECTIONS; CURE OF TITLE OBJECTIONS.

 

            (a)    Jupiter shall have until March 16, 2004 (the "TITLE OBJECTION

      DEADLINE") to notify Post, in writing, of such objections as Jupiter may

      have to the Title Commitments (including the title exception documents

      referred to therein) or the Surveys, other than the Permitted Exceptions

      described in clauses (a) through (e) of Section 3.4. Any item contained in

      the Title Commitments and any matter shown on the Surveys to which Jupiter

      does not object on or before the Title Objection Deadline shall be deemed

      a "PERMITTED EXCEPTION".

 

            (b)    In the event Jupiter shall notify Post of objections to title

      or to matters shown on the Surveys on or before the Title Objection

      Deadline, Post shall have the right, but not the obligation, to cure such

      objections. On or before the seventh (7th) day following the Title

      Objection Deadline, Post shall notify Jupiter in writing whether Post

      elects to attempt to cure any such objections (and Post's failure to

      provide such a notice shall be deemed an election by Post not to cure any

      such objection). If Post elects to attempt to cure, and provided that

      Jupiter shall not have terminated this Agreement in accordance with

      Section 4.2 hereof, then Post shall use commercially reasonable efforts to

      attempt to remove, satisfy or cure the same. For this purpose Post shall

      be entitled to a reasonable extension of the Closing if additional time is

      required, but in no event shall the extension extend for more than thirty

      (30) days. If Post elects (or is deemed to have elected) not to cure any

      valid objections specified in Jupiter's notice, or if Post notifies

      Jupiter of Post's intent to cure any objection and thereafter Post fails

      or is unable to effect a cure prior to Closing (or any date to which the

      Closing has been extended), then in either such case Jupiter shall have

      the right to elect one, but not both, of the following options, which

      election must in each case be made within the time period provided in

      paragraph (c) below:

 

                  (1)    to accept a conveyance of the Property subject to the

            Permitted Exceptions, specifically including any matter objected to

            by Jupiter which Post is unwilling or unable to cure, and without

            reduction of the Property Value; or

 

                  (2)    to terminate this Agreement by sending written notice

            thereof to Post, and upon delivery of such notice of termination,

            this Agreement shall terminate and the Option Money shall be

            returned to Jupiter in accordance with Section 1.4 of this

            Agreement, and thereafter neither party hereto shall have any

            further rights, obligations or liabilities hereunder except to the

            extent that any

 

                                       18

<PAGE>

 

            right, obligation or liability set forth herein expressly survives

            termination of this Agreement.

 

            (c)    If Post notifies Jupiter that Post does not intend to attempt

      to cure any title objection, or if Post is deemed to have elected not to

      cure any title objections, or if Post notifies Jupiter of Post's intent to

      cure any objection and Post later notifies Jupiter that Post has failed or

      will be unable to effect a cure thereof, then in any such case Jupiter

      shall, no later than the fifth (5th) business day after receiving Post's

      notice or the date of Post's deemed election, as applicable (the "TITLE

      ACCEPTANCE DEADLINE"), notify Post in writing whether Jupiter shall elect

      to accept the conveyance under clause (b) (1) above or to terminate this

      Agreement under clause (b) (2) above. If Jupiter does not notify Post in

      writing on or before the Title Acceptance Deadline of Jupiter's election

      to accept the conveyance under clause (b)(1) above (the "TITLE ACCEPTANCE

      NOTICE"), then Jupiter shall be deemed to have elected to terminate this

      Agreement. Upon any such termination (or deemed termination) of this

      Agreement pursuant to Jupiter's rights under this Section 3.3(c), the

      Option Money shall be immediately returned to Jupiter and Jupiter and Post

      shall have no further rights and obligations hereunder except those which

      expressly survive termination of this Agreement. If Jupiter provides the

      Title Acceptance Notice on or before the aforementioned time on the Title

      Acceptance Deadline, then Jupiter shall no longer have the right to

      terminate this Agreement under this Section 3.3(c), and (subject to the

      other provisions of this Agreement) shall be bound to proceed to Closing

      and consummate the transaction contemplated hereby pursuant to the clause

      (b)(1) above and the other terms of this Agreement.

 

            (d)    Notwithstanding anything contained herein to the contrary,

      Post shall be obligated at Closing to discharge (a) all mortgages of Post

      (regardless of whether Jupiter objects to such mortgage), other than

      mortgages evidencing or securing the Assumed Project Financing, (b) all

      undisputed monetary liens arising by, through or under Post, other than

      liens evidencing or securing the Assumed Project Financing, and (c)

      disputed monetary liens arising by, through or under Post, of up to ONE

      HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00) in the aggregate. In the

      case of any disputed monetary lien(s) arising by, through or under Post in

      excess of One Hundred Thousand and No/100 Dollars ($100,000.00) in the

      aggregate, Post shall, if Post elects not to discharge such lien(s) prior

      to Closing, indemnify Jupiter in a form reasonably acceptable to Jupiter

      against such lien(s), provided, however, that in no event shall Post have

      an obligation to discharge or indemnify Jupiter against any disputed

      monetary lien(s) arising by, through or under Post in an amount in excess

      of THREE MILLION AND NO/100 DOLLARS ($3,000,000.00) in the aggregate. (The

      term "mortgage" as used herein includes any mortgage, deed of trust, deed

      to secure debt and similar security instrument securing an indebtedness of

      Post and encumbering the Property or any portion thereof; the terms

       "discharge" and "discharged" as used herein include compliance with a

      statutory bonding procedure that has the legal effect of removing the

      mortgage or item as a lien on the Property or otherwise allows the

      mortgage or item to be removed from the title exceptions in the Title

      Policy).

 

                                       19

<PAGE>

 

            (e)    Post will cooperate with Jupiter in a reasonable manner to

      assist Jupiter in resolving any objections to title Jupiter's credit

      enhancer may have, but Post shall have no obligation to cure or correct

      title matters other than as set forth in this Section 3.3.

 

      3.4 CONVEYANCE OF TITLE. At Closing, Post shall convey and transfer the

Property to Jupiter. It shall be a condition to Jupiter's obligation to close

this transaction that title to the Real Property conveyed and transferred to

Jupiter shall be such title to the Real Property as will enable the Title

Company to issue to Jupiter an extended coverage American Land Title Association

(ALTA) Form 1992 Owner's Policy of Title Insurance (the "TITLE POLICY") covering

the Real Property, in the full amount of the Property Value, subject only to the

following matters, which shall be deemed to be Permitted Exceptions:

 

            (a)    the rights of tenants, as tenants only, under the Leases

      described in the Rent Roll and any new Leases entered into between the

      Effective Date and Closing and (if required) approved by Jupiter in

      accordance with the terms of this Agreement;

 

            (b)    the lien of all ad valorem real estate taxes and assessments

      not yet due and payable as of the date of Closing, subject to adjustment

      as herein provided;

 

            (c)    local, state and federal laws, ordinances or governmental

      regulations, including but not limited to, building, zoning and land use

      laws, ordinances and regulations, now or hereafter in effect relating to

      the Property;

 

            (d)    all matters identified in Schedules 3.4-1 through 3.4-7,

      attached hereto and by this reference made a part hereof;

 

            (e)    all mortgages and other encumbrances evidencing or securing

      the Assumed Project Financing.

 

            (f)    additional items, if any, approved or deemed approved by

      Jupiter pursuant to Sections 3.3 , 3.5 and 3.6 hereof.

 

      3.5 PRE-CLOSING "GAP" TITLE DEFECTS. Whether or not Jupiter shall have

furnished to Post any notice of title objections pursuant to the foregoing

provisions of this Agreement, Jupiter may, at or prior to Closing, notify Post

in writing of any objections to title first raised by the Title Company or the

applicable surveyor and first arising between (a) the effective date of the

Title Commitments and Surveys, as applicable, and (b) the date on which the

transaction contemplated herein is scheduled to close; provided, however, that

Jupiter must notify Post of any such objections within five (5) business days of

Jupiter's first receipt of the updated title commitment, updated survey or other

document, whichever first provides notice of the condition giving rise to any

such objection. With respect to any objections to title set forth in such

notice, Post shall have the same option to cure and Jupiter shall have the same

option to accept title subject to such matters or to terminate this Agreement as

those which apply to any notice of objections made by Jupiter on or before the

Title Objection Deadline. If Post elects to attempt to cure any such matters,

Post shall have the right, at its election, to extend the date for Closing by a

reasonable additional time to effect such a cure, but in no event shall the

Closing be extended for more than thirty (30) days.

 

                                       20

<PAGE>

 

      3.6 POST'S COVENANT NOT TO ENCUMBER. Post agrees that, between the

Effective Date and the Closing Date, Post will not sell, assign, rent, convey

(absolutely or as security), grant a security interest in, or otherwise encumber

or dispose of, the Property (or any part thereof or estate therein) in any

manner that will survive Closing, except as approved in writing by Jupiter or as

expressly provided in this Agreement. Notwithstanding the foregoing, Post shall

have the right to (i) continue leasing apartment units in the Property in the

manner described in Section 6.4 (b) hereof, (ii) terminate, amend or enter into

service contracts in the manner described in Section 6.4 (h) hereof and (iii)

use, deplete, remove or replace items of Tangible Personal Property in the

ordinary course of business. In addition, and notwithstanding the foregoing,

Post shall have the right, for tax planning or other purposes, to transfer all

or part of the Property or any interest therein to any parent, subsidiary or

other entity that is affiliated with or related to Post provided (A) such entity

assumes and agrees to be bound by the obligations of Post under this Agreement

and (B) any such transfer shall not release or relieve Post of its obligations

to Jupiter under this Agreement.

 

                                     ARTICLE 4

 

                                INSPECTION PERIOD

 

      4.1 RIGHT OF INSPECTION.

 

            (a)    Beginning upon the date of execution of the Access Agreement

      and continuing so long as this Agreement remains in full force and effect,

      Jupiter has had and shall continue to have the right to make a physical

      inspection of the Property and to examine at such place or places at the

      Property, in the offices of the property manager or elsewhere as the same

      may be located, any operating files maintained by Post or its property

      manager in connection with the leasing, maintenance and/or management of

      the Property, including, without limitation, the Leases, lease files,

      tenant income certifications (to the extent in Post's possession), service

      contracts, bills, invoices, receipts and other general records relating to

      the income and expenses of the Property, correspondence, surveys, plans

      and specifications, warranties for services and materials provided to the

      Property, engineering reports, and similar materials, but excluding

      materials not directly related to the leasing, maintenance, and/or

      management of the Property such as Post's internal memoranda, financial

      projections, insurance policies, appraisals, accounting and tax records

      and similar proprietary or confidential information.

 

            (b)    Jupiter understands and agrees that any on-site inspections of

      the Property shall be governed by and conducted in accordance with that

      certain Access Agreement between Jupiter and Post dated January 28, 2004

      (the "ACCESS AGREEMENT"). The parties hereby affirm that the Access

      Agreement remains in full force and effect under its terms, and the Access

      Agreement is incorporated herein by this reference.

 

            (c)    Jupiter shall indemnify, hold harmless and defend Post from

      and against any and all claims, demands, causes of action, liabilities,

      losses, costs, damages and expenses (including reasonable attorneys' fees

      and expenses and court costs incurred in defending any such claim or in

      enforcing this indemnity) of whatsoever nature

 

                                       21

<PAGE>

 

       (individually a "CLAIM" and collectively, "CLAIMS") that may be incurred

      by Post and arising out of or in connection with the acts or omissions of

      Jupiter and its agents, representatives, contractors and consultants, or

      any of them, including but not limited to Claims arising out of or in

      connection with personal injury or death of persons, loss, destruction or

      damage to property, or liens or claims of lien filed against the Property.

      This Section 4.1 (c) shall survive Closing or any termination of this

      Agreement.

 

      4.2 RIGHT OF TERMINATION. Post agrees that in the event Jupiter

determines, in Jupiter's sole discretion, that it does not wish to acquire the

Property for any reason or no reason, then Jupiter shall have the right to

terminate this Agreement by giving written notice of such termination to Post on

or before March 31, 2004 (the "INSPECTION DATE"). Upon any such termination of

this Agreement pursuant to Jupiter's rights under this Section 4.2 , the Option

Money shall be returned to Jupiter in accordance with Section 1.4 hereof, and

Jupiter and Post shall have no further rights and obligations hereunder except

those which expressly survive termination of this Agreement. If Jupiter fails to

give Post timely notice of termination on or before the Inspection Date, then

Jupiter shall no longer have the right to terminate this Agreement under this

Section 4.2 and (subject to any contrary provisions of this Agreement) shall be

bound to proceed to Closing and consummate the transaction contemplated hereby

pursuant to the terms of this Agreement. Time is of the essence with respect to

the provisions of this Section 4.2. The period commencing on the Effective Date

and ending on the Inspection Date is sometimes referred to herein as the

"INSPECTION PERIOD".

 

                                    ARTICLE 5

 

                                     CLOSING

 

            5.1 TIME AND PLACE.

 

            (a)    The consummation of the transaction contemplated hereby

      ("CLOSING") shall be held at the at the offices of King & Spalding LLP,

      191 Peachtree Street, Atlanta, Georgia 30303 at 10:00 A.M. (Atlanta,

      Georgia local time) on April 30, 2004 (or such extended date as may be

      provided under other provisions of this Agreement). At Closing, Post and

      Jupiter shall perform the obligations set forth in, respectively, Section

      5.2 and Section 5.3 . The Closing may be held at such other place or such

      earlier time and date as Post and Jupiter shall mutually approve in

      writing. The date on which the Closing is scheduled to occur hereunder

      (or, if earlier, the date on which Closing occurs) is sometimes referred

      to herein as the "CLOSING DATE".

 

            (b)    If, as of April 30, 2004, either Jupiter or Post has not

      obtained from the Bond Participants such consents, if any, as are

      necessary for the Assumption and Release Transaction in accordance with

      this Agreement (the "BOND CONSENTS"), either Jupiter or Post may extend

      the Closing Date to a date no later than the earlier to occur of (i) the

      tenth (10th) business day following receipt of the Bond Consents or (ii)

      June 30, 2004. In order for any such extension by either Jupiter or Post

      to be effective, written notice of

 

                                       22

<PAGE>

 

      such extension must be given to and received by the other party no later

      than April 30, 2004.

 

            5.2 POST'S OBLIGATIONS AT CLOSING. At Closing, Post shall:

 

            (a)    deliver to Jupiter a duly executed limited warranty deed with

      respect to each Project in the form attached hereto as Schedule 5.2(a) and

      by this reference made a part hereof, conveying the Real Property to

      Jupiter subject to the Permitted Exceptions (the "DEED"), provided that

      the Deed shall be conformed as a special warranty deed with respect to the

      Post Lake(R) Project in Florida;

 

            (b)    deliver to Jupiter two counterparts of a bill of conveyance

      and assignment and assumption of leases and service contracts with respect

      to each Project, in the form attached hereto as Schedule 5.2(b) and by

      this reference made a part hereof, duly executed by Post, pursuant to

      which (i) Post shall convey the Tangible Personal Property and the

      Intangible Property associated with such Project to Jupiter, and (ii) Post

      shall assign to Jupiter, and Jupiter shall assume from and after the date

      of Closing, Post's interest in and to the Leases and Designated Service

      Contracts associated with such Project, as amended or supplemented

      pursuant to this Agreement (the "BILL OF CONVEYANCE AND ASSIGNMENT");

 

            (c)    join with Jupiter to execute a notice with respect to each

      Project (the "TENANT NOTICE") in form and content reasonably satisfactory

      to Jupiter and Post, which Jupiter shall send to each tenant under each of

      the Leases informing such tenant of the conveyance of the Property and of

      the assignment to Jupiter of Post's interest in, and obligations under,

      the Leases (including, if applicable any security deposits) and directing

      that all rent and other sums payable after the Closing under each such

      Lease shall be paid as set forth in the notice.

 

            (d)    join with Jupiter in the execution and delivery of such

      assignment and assumption agreements as are agreed upon by Post, Jupiter

      and the applicable Bond Participants in connection with the assignment and

      assumption of the Assumed Project Financing;

 

            (e)    join with Jupiter in the execution of such assignment and

      assumption agreements as are agreed upon by Post, Jupiter and the Lender

      in connection with the assignment and assumption of the Other Assumed

      Debt;

 

            (f)    deliver to Jupiter a certificate ("POST'S CLOSING

      CERTIFICATE"), dated as of the date of Closing and duly executed by Post,

      stating that the representations and warranties of Post contained in

      Section 6.1 of this Agreement are true and correct in all material

      respects as of the date of Closing (with appropriate modifications to

      reflect any changes therein or identifying any representation or warranty

      which is not, or no longer is, true and correct and explaining the state

      of facts giving rise to the change); a then current Rent Roll for each

      Project shall be attached to Post's Closing Certificate in substitution of

      Schedules 1.1(e)-1 through 1.1(e)-7 which are attached to this Agreement,

 

                                       23

<PAGE>

 

      provided that the representations and warranties of Post as to the Rent

      Roll in Post's Closing Certificate shall be limited to those set forth in

      Section 6.1(d) of this Agreement. The inclusion of any change or exception

      in such certificate shall not prejudice Jupiter's rights under this

      Agreement with respect to the subject matter of such change or exception.

 

            (g)    deliver to Jupiter two counterparts of the Management

      Agreement, duly executed by Post, as contemplated in Section 1.6.

 

            (h)    deliver to Jupiter such evidence as Jupiter's counsel and/or

      the Title Company may reasonably require as to the authority of the person

      or persons executing documents on behalf of Post;

 

            (i)    deliver to Jupiter an affidavit duly executed by Post stating

      that Post is not a "foreign person" as defined in the Federal Foreign

      Investment in Real Property Tax Act of 1980 and the 1984 Tax Reform Act;

 

            (j)    deliver to the Title Company a title insurance affidavit with

      respect to each Project, if required by the Title Company, duly executed

      by Post or a representative of Post, in form and content reasonably

      satisfactory to Post and the Title Company;

 

            (k)    deliver to Jupiter at the place of Closing or at the

      respective Projects the Leases, the Designated Service Contracts and

      licenses and permits, if any, in the possession of Post or Post's agents,

      including any originally executed Leases and Designated Service Contracts

      in Post's possession at the respective Projects or otherwise in Post's

      reasonable control, together with such leasing and property files and

      records which are material in connection with the continued operation,

      leasing and maintenance of each Project, and all keys to the Improvements

      which are in Post's possession;

 

            (l)    deliver to Jupiter possession and occ


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