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EXHIBIT 4.2
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GABLES REALTY LIMITED PARTNERSHIP
ISSUER
to
FIRST UNION NATIONAL BANK
TRUSTEE
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Supplemental Indenture No. 2
Dated as of September 30, 1998
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$50,000,000
of
6.55% Senior Notes Due 2000
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SUPPLEMENTAL INDENTURE NO. 2, dated as of September 30, 1998 (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 FIRST UNION NATIONAL BANK, a national banking association,
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 (the "Senior Indenture"), a form of 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. 333-30093), 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 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:
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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
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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" mean 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.
"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 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
"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
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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" mean 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 re deemed 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.
"Management Companies" means certain corporations, of which the
Partnership owns 100% of the nonvoting stock and 1% of the voting stock, which
do not qualify as "qualified REIT subsidiaries" under the Internal Revenue Code
of 1986, as amended.
"Notes" has the meaning specified in Section 2.1 hereof.
"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
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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 securi ties" 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.
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ARTICLE TWO
THE NOTES
SECTION 2.1. TITLE OF THE SECURITIES.
There shall be a series of Securities designated the "6.55% Senior
Notes Due 2000" (the "Notes").
SECTION 2.2. LIMITATION ON AGGREGATE PRINCIPAL AMOUNT.
The aggregate principal amount of the Notes shall be limited to
$50,000,000, and, except as provided in this Section and in Section 306 of the
Senior Indenture, the Partnership shall not execute and the Trustee shall not
authenticate or deliver Notes in excess of such aggregate principal amount.
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 6.55% per annum from October 1, 1998 or
from the immediately preceding Interest Payment Date (as defined below) to which
interest has been paid, payable semi-annually in arrears on April 1 and October
1 of each year, commencing April 1, 1999 (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., March 15 and September 15, 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.
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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 October 1, 2000.
SECTION 2.4. LIMITATIONS ON INCURRENCE OF DEBT.
(a) 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, any of its Subsidiaries, the Partnership or the
Management Companies, 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 outstand ing Debt of the 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).
(b) In addition to the limitation set forth in subsection (a) 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
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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.
(c) In addition to the limitations set forth in subsections (a) and
(b) 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 mort gages 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).
(d) 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.
(e) 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.
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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 First Union National Bank, Corporate Trust Department, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
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.
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 ("DTC"). The Notes shall not be issuable in
definitive form except as provided in Section 305 of the Senior Indenture.
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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 2.14 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 2.14 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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Chief Financial Officer
FIRST UNION NATIONAL BANK,
as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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 ("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, SINCE 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
6.55% Senior Notes Due 2000
Register No. 1 Principal Amount
CUSIP No. $50,000,000
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
$50,000,000 Dollars on October 1, 2000 (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 October 1, 1998 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on April 1 and October 1 in each year (each, an
"Interest Payment Date"), commencing April 1, 1999, at the rate of 6.55% per
annum, until the principal
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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, which shall be March 15 or September 15
(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 main tained 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
October 1, 1998, 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
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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 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: __________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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.
FIRST UNION NATIONAL BANK,
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 and Supplemental Indenture No. 2,
dated as of September 30, 1998 (as so supplemented, herein called the
"Indenture") between the Partnership and 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 $50,000,000 (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.
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19
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 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.
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20
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.
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
________________________________________
| |
| | ....................................
|_______________________________________|
................................................................................
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
................................................................................
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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