Exhibit 4.2
GABLES REALTY LIMITED PARTNERSHIP
ISSUER
to
WACHOVIA BANK, NATIONAL ASSOCIATION
TRUSTEE
-------------------------
Supplemental Indenture No. 5
Dated as of July 8, 2002
-------------------------
$180,000,000
of
5.75% Senior Notes Due 2007
SUPPLEMENTAL INDENTURE NO. 5, dated as of July 8, 2002 (the "Supplemental
Indenture"), between GABLES REALTY LIMITED PARTNERSHIP, a limited partnership
organized under the laws of the State of Delaware (herein called the
"Partnership"), and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking
association and successor to First Union National Bank, as Trustee (herein
called the "Trustee").
RECITALS OF THE PARTNERSHIP
The Partnership has heretofore delivered to the Trustee an Indenture
dated as of March 23, 1998, as supplemented by Supplemental Indenture No. 1,
dated as of March 23, 1998, Supplemental Indenture No. 2, dated as of September
30, 1998, Supplemental Indenture No. 3, dated as of October 8, 1998 and
Supplemental Indenture No. 4, dated as of February 22, 2001 (the "Senior
Indenture"), which has been filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, as an exhibit to the Partnership's
Registration Statement on Form S-3 (Registration No. 333-68359), providing for
the issuance by the Partnership from time to time of its senior debt securities
evidencing its unsecured and unsubordinated indebtedness (the "Securities").
Section 301 of the Senior Indenture provides for various matters with
respect to any series of Securities issued under the Senior Indenture to be
established in an indenture supplemental to the Senior Indenture.
Section 901(7) of the Senior Indenture provides for the Partnership and
the Trustee to enter into an indenture supplemental to the Senior Indenture to
establish the form or terms of Securities of any series as provided by Sections
201 and 301 of the Senior Indenture.
The Board of Directors of Gables GP, Inc., the general partner of the
Partnership, has duly adopted resolutions authorizing the Partnership to execute
and deliver this Supplemental Indenture.
All of the conditions and requirements necessary to make this
Supplemental Indenture, when duly executed and delivered, a valid and binding
agreement in accordance with its terms and for the purposes herein expressed,
have been performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the series
of Securities provided for herein by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
Securities of such series, as follows:
ARTICLE ONE
RELATION TO SENIOR INDENTURE; DEFINITIONS
SECTION 1.1. RELATION TO SENIOR INDENTURE.
This Supplemental Indenture constitutes an integral part of the Senior
Indenture.
SECTION 1.2. DEFINITIONS.
For all purposes of this Supplemental Indenture, except as otherwise
expressly provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Senior Indenture; and
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture.
"Acquired Debt" means Debt of a Person (i) existing at the time such
Person becomes a Subsidiary or (ii) assumed in connection with the acquisition
of assets from such Person, in each case, other than Debt incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary or such
acquisition. Acquired Debt shall be deemed to be incurred on the date of the
related acquisition of assets from any Person or the date the acquired Person
becomes a Subsidiary.
"Adjusted Total Assets" as of any date means the sum of (i) the amount
determined by multiplying the price at which the Common Shares of Gables were
offered in the initial public offering (the "IPO") of Common Shares of Gables by
the sum of (A) the Common Shares issued in the IPO and (B) the Units of the
Partnership not held by Gables that were issued in connection with the IPO, (ii)
the principal amount of outstanding Debt of the Partnership immediately
following the IPO and (iii) the purchase price or cost of any real estate assets
or mortgages receivable (or interests therein) acquired (including the value of
any Units issued in connection therewith) or developed after the IPO and the
amount of any securities offering proceeds and other proceeds of Debt received
after the IPO (to the extent such proceeds were not used to acquire real estate
assets or mortgages receivable or used to reduce Debt), adjusted for the
proceeds of any real estate assets disposed of by the Partnership. This
definition of "Adjusted Total Assets" values the assets owned by the Partnership
at the time of the IPO at the market capitalization of the Partnership at that
time, which the Partnership believes to be a more appropriate measure of the
value of those assets than undepreciated book value, which reflects their
pre-IPO cost before accumulated depreciation.
"Annual Debt Service Charge" as of any date means the amount of any
interest expensed during the four consecutive fiscal quarters most recently
ended prior to such date.
"Common Shares" means the common shares of beneficial interest, par value
$0.01 per share, of Gables.
"Consolidated Income Available for Debt Service" for any period means
Consolidated Net Income of the Partnership and its Subsidiaries plus amounts
which have been deducted for: (i) interest on Debt of the Partnership and its
Subsidiaries, (ii) provision for taxes of the Partnership and its Subsidiaries
based on income, (iii) amortization of debt discount, (iv) provisions for gains
and losses on properties, (v) depreciation and amortization, (vi) the effect of
any noncash charge resulting from a change in accounting principles in
determining Consolidated Net Income for such period and (vii) amortization of
deferred charges.
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"Consolidated Net Income" for any period means the amount of net income
(or loss) of the Partnership and its Subsidiaries for such period determined on
a consolidated basis in accordance with GAAP.
"Corporate Trust Office", including for purposes of the Place of Payment
provisions of Sections 305 and 1002 of the Senior Indenture, means the office of
the Trustee at which, at any particular time, its corporate trust business shall
be principally administered, which office at the date hereof is located at 000
Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000.
"Debt" of the Partnership or any Subsidiary means any indebtedness of the
Partnership or any Subsidiary, whether or not contingent, in respect of (i)
borrowed money evidenced by bonds, notes, debentures or similar instruments,
(ii) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or
any security interest existing on property owned by the Partnership or any
Subsidiary, (iii) reimbursement obligations in connection with any letters of
credit actually issued or amounts representing the balance deferred and unpaid
of the purchase price of any property except any such balance that constitutes
an accrued expense or trade payable or (iv) any lease of property by the
Partnership or any Subsidiary as lessee which is reflected on the Partnership's
consolidated balance sheet as a capitalized lease in accordance with GAAP; in
the case of items of indebtedness incurred under (i) through (iii) above to the
extent that any such items (other than letters of credit) would appear as a
liability on the Partnership's consolidated balance sheet in accordance with
GAAP; and also includes, to the extent not otherwise included, any obligation of
the Partnership or any Subsidiary to be liable for, or to pay, as obligor,
guarantor or otherwise (other than for purposes of collection in the ordinary
course of business), indebtedness of another Person (other than the Partnership
or any Subsidiary).
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder by the Commission.
"Gables" means Gables Residential Trust, a Maryland real estate
investment trust.
"Make-Whole Amount" means, in connection with any optional redemption or
accelerated payment of any Note, the excess, if any, of (i) the aggregate
present value as of the date of such redemption or accelerated payment of each
dollar of principal being redeemed or paid and the amount of interest (exclusive
of interest accrued to the date of redemption or accelerated payment) that would
have been payable in respect of such dollar if such redemption or accelerated
payment had not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Reinvestment Rate (determined on the third
Business Day preceding the date such notice of redemption is given or
declaration of acceleration is made) from the respective dates on which such
principal and interest would have been payable if such redemption or accelerated
payment had not been made, over (ii) the aggregate principal amount of the Notes
being redeemed or paid. Any Make-Whole Amount shall be determined by the
Partnership, when owing, in an Officers' Certificate to be filed with the
Trustee, which certificate shall set out the computation of such Make Whole
Amount.
"Notes" has the meaning specified in Section 2.1 hereof.
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"Reinvestment Rate" means the yield on Treasury securities at a constant
maturity corresponding to the remaining life (as of the date of redemption, and
rounded to the nearest month) to stated maturity of the principal being redeemed
(the "Treasury Yield"), plus 0.25%. For purposes hereof, the Treasury Yield
shall be equal to the arithmetic mean of the yields published in the Statistical
Release (as defined below) under the heading "Week Ending" for the "U.S.
Government Securities--Treasury Constant Maturities" with a maturity equal to
such remaining life; provided, that if no published maturity exactly corresponds
to such remaining life, then the Treasury Yield shall be interpolated or
extrapolated on a straight-line basis from the arithmetic means of the yields
for the next shortest and next longest published maturities. For purposes of
calculating the Reinvestment Rate, the most recent Statistical Release published
prior to the date of determination of the Make-Whole Amount shall be used. If
the format or content of the Statistical Release changes in a manner that
precludes determination of the Treasury Yield in the above manner, then the
Treasury Yield shall be determined in the manner that most closely approximates
the above manner, as reasonably determined by the Partnership.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded United
States government securities adjusted to constant maturities or, if such
statistical release is not published at the time of any determination of the
Make-Whole Amount, then such other reasonably comparable index which shall be
designated by the Partnership.
"Subsidiary" means, with respect to any Person, any corporation or other
entity of which a majority of (i) the voting power of the voting equity
securities or (ii) the outstanding equity interests of which are owned, directly
or indirectly, by such Person. For the purposes of this definition, "voting
equity securities" means equity securities having voting power for the election
of directors, whether at all times or only so long as no senior class of
security has such voting power by reason of any contingency.
"Unencumbered Total Asset Value" as of any date means the sum of (i) the
portion of Adjusted Total Assets allocable to the Partnership's real estate
assets and (ii) the value of all other assets of the Partnership and its
Subsidiaries on a consolidated basis determined in accordance with GAAP (but
excluding intangibles and accounts receivable), in each case which are
unencumbered by any mortgage, lien, charge, pledge or security interest.
"Units" means units of limited partnership of the Partnership.
ARTICLE TWO
THE NOTES
SECTION 2.1. TITLE OF THE SECURITIES.
There shall be a series of Securities designated the "5.75% Senior Notes
Due 2007" (the "Notes").
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SECTION 2.2. LIMITATION ON AGGREGATE PRINCIPAL AMOUNT.
The aggregate principal amount of the Notes initially shall be limited to
$180,000,000. The Partnership may, subject to Section 2.4 of this Supplemental
Indenture and applicable law, issue additional Notes under this Supplemental
Indenture without the consent of the Holders of outstanding Notes. The initially
issued Notes and any additional Notes subsequently issued shall be treated as a
single class for all purposes of this Supplemental Indenture.
Nothing contained in this Section 2.2 or elsewhere in this Supplemental
Indenture, or in the Notes, is intended to or shall limit execution by the
Partnership or authentication or delivery by the Trustee of Notes under the
circumstances contemplated by Sections 303, 304, 305, 306, 906, 1107 and 1305 of
the Senior Indenture.
SECTION 2.3. INTEREST AND INTEREST RATES; MATURITY DATE OF NOTES.
The Notes will bear interest at 5.75% per annum from July 8, 2002 or from
the immediately preceding Interest Payment Date (as defined below) to which
interest has been paid, payable semi-annually in arrears on January 15 and July
15 of each year, commencing January 15, 2003 (each, an "Interest Payment Date"),
to the persons (the "Holders") in whose name the applicable Notes are registered
in the Security Register at the close of business 15 calendar days prior to such
Interest Payment Date, I.E. December 31 and June 30, respectively (regardless of
whether such day is a Business Day, as defined below), as the case may be (each,
a "Regular Record Date"). Interest on the Notes will be computed on the basis of
a 360-day year of twelve 30-day months. Any interest not punctually paid or duly
provided for on any Interest Payment Date with respect to a Note ("Defaulted
Interest") will forthwith cease to be payable to the Holder on the applicable
Regular Record Date and may either be paid to the person in whose name such Note
is registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to the Holder of such Note not less than
ten days prior to such Special Record Date, or may be paid at any time in any
other lawful manner, as more particularly described in the Indenture.
If any Interest Payment Date or Maturity falls on a day that is not a
Business Day, the required payment shall be on the next Business Day as if it
were made on the date such payment was due and no interest shall accrue on the
amount so payable for the period from and after such Interest Payment Date or
Maturity, as the case may be.
The Notes will mature on July 15, 2007.
SECTION 2.4. LIMITATIONS ON INCURRENCE OF DEBT.
(1) The Partnership will not, and will not permit any Subsidiary to,
incur any Debt, other than intercompany Debt (representing Debt to which the
only parties are Gables, the Partnership or any of its Subsidiaries, but only so
long as such Debt is held solely by any of the foregoing), if, immediately after
giving effect to the incurrence of such additional Debt and the application of
the proceeds thereof, the aggregate principal amount of all outstanding Debt of
the
5
Partnership and its Subsidiaries on a consolidated basis determined in
accordance with GAAP is greater than 60% of the sum of (without duplication) (i)
the Partnership's Adjusted Total Assets as of the end of the calendar quarter
covered in the Partnership's Annual Report on Form 10-K or Quarterly Report on
Form 10-Q, as the case may be, most recently filed with the Commission (or, if
such filing is not permitted under the Exchange Act, filed with the Trustee)
prior to the incurrence of such additional Debt, (ii) the purchase price of any
real estate assets or mortgages receivable (or interests therein) acquired by
the Partnership or any Subsidiary since the end of such calendar quarter,
including those obtained in connection with the incurrence of such additional
Debt and (iii) the amount of any securities offering proceeds received by the
Partnership or any Subsidiary since the end of such calendar quarter (to the
extent that such proceeds were not used to acquire such real estate assets or
mortgages receivable or used to reduce Debt).
(2) In addition to the limitation set forth in subsection (1) of this
Section 2.4, the Partnership will not, and will not permit any Subsidiary to,
incur any Debt if the ratio of Consolidated Income Available for Debt Service to
the Annual Service Charge for the four consecutive fiscal quarters most recently
ended prior to the date on which such additional Debt is to be incurred shall
have been less than 1.5:1, on a PRO FORMA basis after giving effect thereto and
to the application of the proceeds therefrom, and calculated on the assumption
that (i) such Debt and any other Debt incurred by the Partnership and its
Subsidiaries since the first day of such four-quarter period and the application
of the proceeds therefrom, including to refinance other Debt , had occurred at
the beginning of such period; (ii) the repayment or retirement of any other Debt
by the Partnership and its Subsidiaries since the first day of such four-quarter
period had been repaid or retired at the beginning of such period (except that,
in making such computation, the amount of Debt under any revolving credit
facility shall be computed based upon the average daily balance of such Debt
during such period); (iii) in the case of Acquired Debt or Debt incurred in
connection with any acquisition since the first day of such four-quarter period,
the related acquisition had occurred as of the first day of such period with the
appropriate adjustments with respect to such acquisition being included in such
PRO FORMA calculation; and (iv) in the case of any acquisition or disposition by
the Partnership or its Subsidiaries of any asset or group of assets since the
first day of such four-quarter period, whether by merger, stock purchase or
sale, or asset purchase or sale, such acquisition or disposition or any related
repayment of Debt had occurred as of the first day of such period with the
appropriate adjustments with respect to such acquisition or disposition being
included in such PRO FORMA calculation.
(3) In addition to the limitations set forth in subsections (1) and (2)
of this Section 2.4, the Partnership will not, and will not permit any
Subsidiary to, incur any Debt secured by any mortgage, lien, charge, pledge,
encumbrance or security interest of any kind upon any of the property of the
Partnership or any Subsidiary ("Secured Debt"), whether owned at the date hereof
or thereafter acquired, if, immediately after giving effect to the incurrence of
such Secured Debt and the application of the proceeds therefrom, the aggregate
principal amount of all outstanding Secured Debt of the Partnership and its
Subsidiaries on a consolidated basis is greater than 40% of the sum of (without
duplication) (i) the Partnership's Adjusted Total Assets as of the end of the
calendar quarter covered in the Partnership's Annual Report on Form 10-K or
Quarterly Report on Form 10-Q, as the case may be, most recently filed with the
Commission (or, if such filing is not permitted under the Exchange Act, filed
with the Trustee) prior to the incurrence of such additional Debt, (ii) the
purchase price of any real estate assets or mortgages
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receivable (or interests therein) acquired by the Partnership or any Subsidiary
since the end of such calendar quarter, including those proceeds obtained in
connection with the incurrence of such additional Debt and (iii) the amount of
any securities offering proceeds received by the Partnership or any Subsidiary
since the end of such calendar quarter (to the extent that such proceeds were
not used to acquire such real estate assets or mortgages receivable or used to
reduce Debt).
(4) The Partnership and its Subsidiaries will at all times maintain an
Unencumbered Total Asset Value in an amount not less than 150% of the aggregate
principal amount of all outstanding unsecured Debt of the Partnership and its
Subsidiaries on a consolidated basis.
(5) For purposes of this Section 2.4, Debt shall be deemed to be
"incurred" by the Partnership or a Subsidiary whenever the Partnership or such
Subsidiary shall create, assume, guarantee or otherwise become liable in respect
thereof.
SECTION 2.5. REDEMPTION.
The Notes may be redeemed at any time at the option of the Partnership,
in whole or in part, at a redemption price equal to the sum of (i) the principal
amount of the Notes being redeemed plus accrued interest thereon to the
Redemption Date and (ii) the Make-Whole Amount, if any, with respect to such
Notes (the "Redemption Price").
SECTION 2.6. PLACES OF PAYMENT.
The Places of Payment where the Notes may be presented or surrendered for
payment, where the Notes may be surrendered for registration of transfer or
exchange and where notices and demands to and upon the Partnership in respect of
the Notes and the Senior Indenture may be served shall be in the City of
Atlanta, Georgia, and the office or agency for such purpose shall initially be
located at c/o Wachovia Bank, National Association, Corporate Trust Department,
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000.
SECTION 2.7. METHOD OF PAYMENT.
Payment of the principal of and interest on the Notes will be made at the
office or agency of the Partnership maintained for that purpose in the City of
Atlanta, Georgia (which shall initially be an office or agency of the Trustee),
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; PROVIDED,
HOWEVER, that at the option of the Partnership, payments of principal and
interest on the Notes (other than payments of principal and interest due at
Maturity) may be made (i) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or (ii) by wire
transfer to an account maintained by the Person entitled thereto located within
the United States.
SECTION 2.8. CURRENCY.
Principal and interest on the Notes shall be payable in Dollars.
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SECTION 2.9. REGISTERED SECURITIES; GLOBAL FORM.
The Notes shall be issuable and transferable in fully registered form as
Registered Securities, without coupons. The Notes shall be issued in the form of
one or more permanent Global Securities. The depository for the Notes shall be
The Depository Trust Company. The Notes shall not be issuable in definitive form
except as provided in Section 305 of the Senior Indenture.
SECTION 2.10. FORM OF NOTES.
The Notes shall be substantially in the form attached as Exhibit A
hereto.
SECTION 2.11. REGISTRAR AND PAYING AGENT.
The Trustee shall initially serve as Security Registrar and Paying Agent
for the Notes.
SECTION 2.12. DEFEASANCE.
The provisions of Sections 1402 and 1403 of the Senior Indenture,
together with the other provisions of Article Fourteen of the Senior Indenture,
shall be applicable to the Notes. The provisions of Section 1403 of the Senior
Indenture shall apply to the covenants set forth in Sections 2.4 and 2.13 of
this Supplemental Indenture and to those covenants specified in Section 1403 of
the Senior Indenture.
SECTION 2.13. PROVISION OF FINANCIAL INFORMATION.
Whether or not the Partnership is subject to Section 13 or 15(d) of the
Exchange Act, the Partnership will, to the extent permitted under the Exchange
Act, file with the Commission the annual reports, quarterly reports and other
documents which the Partnership would have been required to file with the
Commission pursuant to such Section 13 or 15(d) if the Partnership were so
subject, such documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Partnership would
have been required so to file such documents if the Partnership were so subject.
The Partnership will also in any event (x) within 15 days of each
Required Filing Date (i) if the Partnership is not then subject to Section 13 or
15(d) of the Exchange Act, transmit by mail to all Holders, as their names and
addresses appear in the Security Register, without cost to such Holders, copies
of the annual reports and quarterly reports which the Partnership would have
been required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act if the Partnership were subject to such Sections, and (ii) file
with the Trustee copies of annual reports, quarterly reports and other documents
which the Partnership would have been required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act if the Partnership were
subject to such Sections and (y) if filing such documents by the Partnership
with the Commission is not permitted under the Exchange Act, promptly upon
written request and payment of the reasonable cost of duplication and delivery,
supply copies of such documents to any prospective Holder.
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SECTION 2.14. WAIVER OF CERTAIN COVENANTS.
Notwithstanding the provisions of Section 1010 of the Senior Indenture,
the Partnership may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1004 to 1007, inclusive, of the
Senior Indenture, with Sections 2.4 and 2.13 of this Supplemental Indenture and
with any other term, provision or condition with respect to the Notes or either
series thereof (except any such term, provision or condition which could not be
amended without the consent of all Holders of the Notes or such series thereof,
as applicable), if before or after the time for such compliance the Holders of
at least a majority in principal amount of all outstanding Notes or such series
thereof, as applicable, by Act of such Holders, either waive such compliance in
such instance or generally waive compliance with such covenant or condition.
Except to the extent so expressly waived, and until such waiver shall become
effective, the obligations of the Partnership and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. RATIFICATION OF SENIOR INDENTURE
Except as expressly modified or amended hereby, the Senior Indenture
continues in full force and effect and is in all respects confirmed and
preserved.
SECTION 3.2. GOVERNING LAW.
This Supplemental Indenture and each Note shall be governed by and
construed in accordance with the laws of the State of New York. This
Supplemental Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and shall, to the extent applicable, be governed by such
provisions.
SECTION 3.3. COUNTERPARTS.
This Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed by their respective officers hereunto duly
authorized, all as of the day and year first written above.
GABLES REALTY LIMITED PARTNERSHIP
By: Gables GP, Inc.,
its general partner
By: /s/ XXXXXX X. XXXXX, XX.
-----------------------------------
Xxxxxx Xxxxx, Xx.
Chief Financial Officer
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ XXXXXXXX XXXXXXX
-----------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
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EXHIBIT A
FORM OF SENIOR SECURITY
[Face of Security]
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING SET FORTH IN THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE OF
DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A
NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC
OR ITS NOMINEE TO A SUCCESSOR DEPOSITORY OR ITS NOMINEE.
GABLES REALTY LIMITED PARTNERSHIP
5.75% Senior Notes Due 2007
Register No. 1 Principal Amount
CUSIP No. 362416 AA 7 $180,000,000
GABLES REALTY LIMITED PARTNERSHIP, a Delaware limited partnership (herein
referred to as the "Partnership", which term includes any successor entity under
the Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to Cede & Co. or registered assigns the principal sum of
$180,000,000 Dollars on July 15, 2007 (the "Stated Maturity Date") or earlier at
the option of the Partnership (the "Redemption Date", and together with the
Stated Maturity Date with respect to principal repayable on such date, the
"Maturity Date") and to pay interest thereon from July 8, 2002 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually on January 15 and July 15 in each year (each, an "Interest
Payment Date"), commencing January 15, 2003, at the rate of 5.75% per annum,
until the principal hereof is paid or duly provided for. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Holder in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest,
A-1
which shall be December 31 or June 30 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date at the office or agency
of the Partnership maintained for such purpose; PROVIDED, HOWEVER, that such
interest may be paid, at the Partnership's option, by mailing a check to such
Holder at its registered address or by wire transfer of funds to an account
maintained by such Holder within the United States. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may be paid to the Holder in whose name
this Security (or one or more Predecessor Securities) is registered at the close
of business on a Special Record Date for the payment of such Defaulted Interest
to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
The principal of this Security payable on the Stated Maturity Date or the
principal of, Make-Whole Amount, if any, and, if the Redemption Date is not an
Interest Payment Date, interest on this Security payable on the Redemption Date
will be paid against presentation of this Security at the office or agency of
the Partnership maintained for that purpose in the City of Atlanta, Georgia
(which initially shall be an office or agency of the Trustee), in such coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest payable on this Security on any Interest Payment Date and on the Stated
Maturity Date or Redemption Date, as the case may be, will include interest
accrued from and including the next preceding Interest Payment Date in respect
of which interest has been paid or duly provided for (or from and including July
8, 2002, if no interest has been paid on this Security) to but excluding such
Interest Payment Date or the Stated Maturity Date or Redemption Date, as the
case may be. If any Interest Payment Date or the Stated Maturity Date or
Redemption Date falls on a day that is not a Business Day, as defined below,
principal, Make-Whole Amount, if any, and/or interest payable with respect to
such Interest Payment Date or Stated Maturity or Redemption Date, as the case
may be, will be paid on the next succeeding Business Day with the same force and
effect as if it were paid on the date such payment was due, and no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date or Stated Maturity Date or Redemption Date, as the case
may be. "Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in the City of
New York are authorized by law, regulation or executive order to close.
All payments of principal, Make-Whole Amount, if any, and interest in respect of
this Security will be made by the Partnership in immediately available funds.
Reference is hereby made to the further provisions of this Security set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Partnership has caused "CUSIP" numbers to be
printed on the
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Securities of this series as a convenience to the Holders of such Securities. No
representation is made as to the correctness or accuracy of such CUSIP numbers
as printed on the Securities, and reliance may be placed only on the other
identification numbers printed hereon.
Unless the Certificate of Authentication hereon has been executed by the Trustee
by manual signature of one of its authorized signatories, this Security shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
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IN WITNESS WHEREOF, the Partnership has caused this instrument to be duly
executed under the facsimile corporate seal of its general partner.
Dated: GABLES REALTY LIMITED PARTNERSHIP
By: Gables GP, Inc.,
its general partner
By:
-----------------------------------
Xxxxxx X. Xxxxx, Xx.
Chief Financial Officer
Attest:
-----------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of Securities of the series designated therein referred to in
the within-mentioned Indenture.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
By:
-----------------------------------
Name:
Title:
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[Reverse of Security]
GABLES REALTY LIMITED PARTNERSHIP
This Security is one of a duly authorized issue of securities of the Partnership
(herein called the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of March 23, 1998, as supplemented by Supplemental
Indenture No. 1, dated as of March 23, 1998, Supplemental Indenture No. 2, dated
as of September 30, 1998, Supplemental Indenture No. 3, dated as of October 8,
1998, Supplemental Indenture No. 4, dated as of February 22, 2001 and
Supplemental Indenture No. 5, dated as of July 8, 2002 (as so supplemented,
herein called the "Indenture") between the Partnership and Wachovia Bank,
National Association, successor to First Union National Bank, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture with respect to the series of which this Security is a part), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Partnership, the Trustee and the Holders of the Securities,
and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the duly authorized series of Securities
designated on the face hereof (collectively, the "Securities"), and the
aggregate principal amount of the Securities to be issued under such series as
limited to $180,000,000 (except for Securities authenticated and delivered upon
transfer of, or in exchange for, or in lieu of other Securities). All
capitalized terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
If an Event of Default with respect to the Securities, as defined in the
Indenture, shall occur and be continuing, the principal of the Securities of
this series may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Securities are subject to redemption at any time, as a whole or in part, at
the election of the Partnership, at a Redemption Price equal to the sum of (i)
the principal amount of the Securities being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Securities.
Notice of redemption will be given by mail to Holders of Securities, not less
than 30 nor more than 60 days prior to the Redemption Date, all as provided in
the Indenture.
The Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Partnership on this Security and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Partnership, in each case, upon compliance by the Partnership with certain
conditions set forth in the Indenture, which provisions apply to this Security.
In the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Partnership and the rights of the Holders of
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the Securities under the Indenture at any time by the Partnership and the
Trustee with the consent of the Holders of not less than a majority of the
aggregate principal amount of all Securities issued under the Indenture at the
time Outstanding and affected thereby. The Indenture also contains provisions
permitting the Holders of not less than a majority of the aggregate principal
amount of the Outstanding Securities, on behalf of the Holders of all such
Securities, to waive compliance by the Partnership with certain provisions of
the Indenture. Furthermore, provisions in the Indenture permit the Holders of
not less than a majority of the aggregate principal amount, in certain
instances, of the Outstanding Securities of any series to waive, on behalf of
all of the Holders of Securities of such series, certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and other Securities issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Partnership, which is
absolute and unconditional, to pay the principal of (and Make-Whole Amount, if
any) and interest on this Security at the times, places and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register of
the Partnership upon surrender of this Security for registration of transfer at
the office or agency of the Partnership in any place where the principal of (and
Make-Whole Amount, if any) and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Partnership and the Security Registrar duly executed by, the
Holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein set
forth, this Security is exchangeable for a like aggregate principal amount of
Securities of different authorized denominations but otherwise having the same
terms and conditions, as requested by the Holder hereof surrendering the same.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
No service charge shall be made for any such registration of transfer or
exchange, but the Partnership may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Partnership, the Trustee and any agent of the Partnership or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Partnership, the Trustee nor any such agent shall be affected by notice to the
contrary.
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Notwithstanding anything contained herein to the contrary, no recourse under or
upon any obligation, covenant or agreement contained in the Indenture or in this
Security, or because of any indebtedness evidenced hereby or thereby, or for any
claim based thereon or otherwise in respect hereof, shall be had for the payment
of the principal of or Make-Whole Amount, if any, or the interest on this
Security, or for any claim based hereon, or otherwise in respect hereof, or
based on or in respect of the Indenture or any indenture supplemental thereto,
against (i) the Company or any other past, present or future partner in the
Partnership, (ii) against any other Person which owns an interest, directly or
indirectly, in any partner of the Partnership or (iii) against any past, present
or future stockholder, employee, officer or director, as such, of the Company,
or of any successor, either directly or through the Partnership or the Company
or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
------------------------------
------------------------------
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(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
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the within Security of Gables Realty Limited Partnership and hereby does
irrevocably constitute and appoint
----------------------------------------------------------------- Attorney to
transfer said Security on the books of the within-named Partnership with full
power of substitution in the premises.
Dated:
--------------------- --------------------------
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
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