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NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC") (55 WATER STREET, NEW YORK, NEW YORK), TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS 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 AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
REGISTERED NO.: PRINCIPAL AMOUNT
$50,000,000
CUSIP NO.: 737415AE9
POST APARTMENT HOMES, L.P.
6.71% NOTE DUE 2006
POST APARTMENT HOMES, L.P., a Georgia limited partnership (the
"Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or its
registered assigns (the "Holder"), upon presentation, the principal sum of FIFTY
MILLION DOLLARS ($50,000,000) on March 13, 2006 (the "Maturity Date"), and to
pay interest on the outstanding principal amount thereon from March 12, 2001, or
from the most recent interest payment date to which interest has been paid or
duly provided for, semi-annually in arrears on March 13 and September 13 of each
year (each an "Interest Payment Date"), commencing September 13, 2001, and at
the Stated Maturity, at the rate of 6.71% per annum, computed on the basis of a
360-day year comprised of twelve 30-day months, until the entire principal
amount 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 the Indenture (hereinafter defined), be paid to the person in whose
name this Note (the "Note") (or one or more predecessor Notes) is registered at
the close of business on February 27 of each year (regardless of whether such
day is a Business day) for the March 13 Interest Payment Date and August 30 of
each year (regardless of whether such day is a Business Day) for the September
13 Interest Payment Date (each a "Regular Record Date"). Any such
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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 either be paid to the
Person in whose name this Note (or one or more predecessor Notes) 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 Notes not more than 15 days and 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 Notes
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture. Payments of the principal and interest on,
this Note will be made at the office or agency of the Trustee (hereinafter
defined) maintained for that purpose at c/o Harris Trust Bank of New York, Wall
Street Plaza, 88 Pine Street, 19th Floor, New York, New York 10005, or elsewhere
as provided in the Indenture, in United States Dollars; provided, however, that
at the option of the Issuer payment of interest may be made by (i) check mailed
to the address of the Person entitled thereto as such address shall appear in
the Security Register kept for the Notes pursuant to Section 305 of the
Indenture (the "Note Register") or (ii) transfer to an account of the Person
entitled thereto located inside the United States. Payments of principal and
interest in respect of this Note will be made by wire transfer of immediately
available funds, in such coin or currency as at the time of payment is legal
tender for the payment of public and private debts, so long as this Note is in
global form as described in Section 203 of the Indenture. If this Note is not in
global form, all such payments will be made by wire transfer of immediately
available funds if the Holder hereof at the applicable record date shall have
provided wire transfer instructions to the Trustee, received by the Trustee no
later than 15 days prior to the applicable payment date, and otherwise payment
shall be made in accordance with Section 307 of the Indenture. Such wire
transfer instructions shall remain in effect until revoked in a writing received
by the Trustee from the Holder hereof.
This Note is one of a fully authorized issue of securities of the
Issuer issued under an Indenture, dated as of September 15, 2000 (the
"Indenture"), as supplemented by the First Supplemental Indenture among the
Issuer and Sun Trust Bank, (the "Trustee," which term includes any successor
trustee under the Indenture with respect to the Notes), 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 Issuer, the Trustee and Holders of the Notes, and of the terms upon which
the Notes are, and are to be, authenticated and delivered. This Note is one of
the series designated as the "6.71% Notes due 2006," limited in the aggregate
principal amount to $50,000,000.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Issuer on this Note and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Issuer, in each case, upon compliance by the Issuer with certain conditions set
forth in the Indenture, which provisions apply to this Note.
In addition to the covenants of the Issuer contained in the Indenture,
the Issuer makes the following covenants with respect to, and for the benefit of
the Holders of, the Notes:
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Limitations On Incurrence of Debt. The Issuer will not, and
will not permit a Subsidiary to, incur any Debt (as defined below),
other than intercompany Debt (representing Debt to which the only
parties are Post Properties, Inc., a Georgia corporation (the
"Company"), the Issuer and any Subsidiaries, but only so long as such
Debt is held solely by any of the Company, the Issuer and any
Subsidiary), if, immediately after giving effect to the incurrence of
such additional Debt, the aggregate principal amount of all outstanding
Debt of the Issuer and its Subsidiaries on a consolidated basis
determined in accordance with generally accepted accounting principles
is greater than 60% of the sum of (i) Total Assets (as defined below)
as of the end of the fiscal quarter covered in the Issuer's Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may
be, most recently filed with the Securities and Exchange Commission
(or, if such filing is not permitted under the Securities Exchange Act
of 1934, as amended, with the Trustee) prior to the incurrence of such
additional Debt and (ii) the increase in Total Assets from the end of
such quarter including, without limitation, any increase in Total
Assets resulting from the incurrence of such additional Debt (such
increase together with the Issuer's Total Assets is referred to as the
"Adjusted Total Assets").
In addition to the foregoing limitation on the incurrence of
Debt, the Issuer will not, and will not permit any Subsidiary to, incur
any Secured Debt other than intercompany Debt if, immediately after
giving effect to the incurrence of such additional Secured Debt, the
aggregate principal amount of all outstanding Secured Debt of the
Issuer and its Subsidiaries on a consolidated basis is greater than 40%
of Adjusted Total Assets. Debt shall be deemed to be "incurred" by the
Issuer and its Subsidiaries on a consolidated basis whenever the Issuer
and its Subsidiaries on a consolidated basis shall create, assume,
guarantee or otherwise become liable in respect thereof.
In addition to the foregoing limitations on the incurrence of
Debt, the Issuer will not, and will not permit any Subsidiary to, incur
any Debt, other than intercompany Debt, if the ratio of Consolidated
Income Available for Debt Service to the Annual Debt Service Charge (in
each case as defined below) for the period consisting of 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 to 1, on a pro forma basis after giving effect to the incurrence of
such Debt and to the application of the proceeds therefrom, and
calculated on the assumption that (i) the incurrence of such Debt and
any other Debt by the Issuer or 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
Issuer or 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), and (iii) in the case
of any increase or decrease in Total Assets, or any other acquisition
or disposition by the Issuer or any Subsidiary of any asset or group of
assets, since the first day of such four-quarter period, including,
without limitation, by merger, stock purchase or sale, or asset
purchase
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or sale, such increase, decrease or other acquisition or disposition or
any related repayment of Debt had occurred as of the first day of such
period with the appropriate adjustments to net income and Debt levels
with respect to such increase, decrease or other acquisition or
disposition being included in such pro forma calculation. For purposes
of the adjustments referred to in clause (iii) of the preceding
sentence, any income earned (or loss incurred) as a result of any such
increase, decrease or other acquisition or disposition referred to in
clause (iii) for a period less than such four-quarter period shall be
annualized for such four-quarter period.
Maintenance of Total Unencumbered Assets. The Issuer is
required to maintain Total Unencumbered Assets of not less than 150% of
the aggregate outstanding principal amount of the outstanding Unsecured
Debt of the Issuer.
As used herein:
"Annual Debt Service Charge" as of any date means the amount
which is expensed in any 12-month period for interest on Debt of the
Issuer and its Subsidiaries.
"Consolidated Income Available for Debt Service" for any
period means Consolidated Net Income plus amounts which have been
deducted in determining Consolidated Net Income during such period for
(i) Consolidated Interest Expense, (ii) provision for taxes of the
Issuer and its Subsidiaries based on income, (iii) amortization (other
than amortization of debt discount) and depreciation, (iv) provisions
for losses from sales or joint ventures, (v) increases in deferred
taxes and other non-cash items, (vi) charges resulting from a change in
accounting principles, and (vii) charges for early extinguishment of
debt, and less amounts which have been added in determining
Consolidated Net Income during such period for (a) provisions for gains
from sales or joint ventures, and (b) decreases in deferred taxes and
other non-cash items.
"Consolidated Interest Expense" means, for any period, and
without duplication, all interest (including the interest component of
rentals on capitalized leases, letter of credit fees, commitment fees
and other like financial charges) and all amortization of debt discount
on all Debt (including, without limitation, payment-in-kind, zero
coupon and other like securities) of the Issuer and its Subsidiaries,
but excluding legal fees, title insurance charges and other
out-of-pocket fees and expenses incurred in connection with the
issuance of Debt, all determined in accordance with generally accepted
accounting principles.
"Consolidated Net Income" for any period means the amount of
consolidated net income (or loss) of the Issuer and its Subsidiaries
for such period determined on a consolidated basis in accordance with
generally accepted accounting principles.
"Debt" of the Issuer or any Subsidiary means any indebtedness
of the Issuer and its Subsidiaries, whether or not contingent, in
respect of (i) borrowed money evidenced by bonds, notes, debentures or
similar instruments, (ii) indebtedness secured by a
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mortgage, pledge, lien, charge, encumbrance or any security interest
existing on property owned by the Issuer and its Subsidiaries, (iii)
the reimbursement obligations, contingent or otherwise, 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 Issuer and its
Subsidiaries as lessee which is reflected in the Issuer's consolidated
balance sheet as a capitalized lease in accordance with generally
accepted accounting principles, in the case of items of indebtedness
under (i) through (iii) above to the extent that any such items (other
than letters of credit) would appear as a liability on the Issuer's
consolidated balance sheet in accordance with generally accepted
accounting principles, and also includes, to the extent not otherwise
included, any obligation by the Issuer 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 Issuer or any
Subsidiary) (it being understood that Debt shall be deemed to be
incurred by the Issuer and its Subsidiaries on a consolidated basis
whenever the Issuer and its Subsidiaries on a consolidated basis shall
create, assume, guarantee or otherwise become liable in respect
thereof); provided, however, that the term Debt shall not include any
such indebtedness that has been the subject of an "in substance"
defeasance in accordance with generally accepted accounting principles.
"Secured Debt" means Debt secured by any mortgage, trust deed,
deed of trust, deed to secure debt, security agreement, pledge,
conditional sale or other title retention agreement, capitalized lease,
or other like agreement granting or conveying security title to or a
security interest in real property or other tangible assets.
"Senior Executive Group" shall mean, collectively, those
individuals holding the offices of Chairman, Vice Chairman, President,
Chief Executive Officer, Chief Operating Officer, or any Executive Vice
President of the Company.
"Subsidiary" means (i) any corporation or other entity the
majority of the shares of the non-voting capital stock or other
equivalent ownership interests of which (except directors' qualifying
shares) are at the time directly or indirectly owned by the Issuer or
Post GP Holdings, Inc, a Georgia corporation and the Issuer's general
partner ("Post GP Holdings") and the majority of the shares of the
voting capital stock or other equivalent ownership interests of which
(except directors' qualifying shares) are at the time directly or
indirectly owned by the Issuer, Post GP Holdings, any other Subsidiary,
and/or one or more individuals of the Senior Executive Group (or, in
the event of death or disability of any of such individuals, his/her
respective legal representative(s)), or such individuals' successors in
office as an officer of Post GP Holdings or the Secretary of such
Subsidiary, and (ii) any other entity (other than Post GP Holdings) the
accounts of which are consolidated with the accounts of the Issuer.
"Total Assets" as of any date means the sum of (i)
Undepreciated Real Estate Assets and (ii) all other assets of the
Issuer and its Subsidiaries on a consolidated basis
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determined in accordance with generally accepted accounting principles
(but excluding intangibles and accounts receivable).
"Total Unencumbered Assets" means the sum of (i) those
Undepreciated Real Estate Assets not securing any portion of Secured
Debt, and (ii) all other assets of the Issuer and its Subsidiaries not
securing any portion of Secured Debt determined in accordance with
generally accepted accounting principles (but excluding accounts
receivable and intangibles).
"Undepreciated Real Estate Assets" as of any date means the
cost (original cost plus capital improvements) of real estate assets of
the Issuer and its Subsidiaries on such date, before depreciation and
amortization, determined on a consolidated basis in accordance with
generally accepted accounting principles.
"Unsecured Debt" means Debt of the Issuer or any Subsidiary
that is not Secured Debt.
If an Event of Default as defined in the Indenture with respect to the
Notes shall occur and be continuing, the principal of, and premium, if any, on,
the Notes may be declared, and upon such declaration shall become, due and
payable in the manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than 25% in principal amount of the Notes at the
time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee and
offered the Trustee reasonable indemnity and the Trustee shall not have received
from the Holders of a majority in principal amount of the Notes at the time
Outstanding a direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Note for the enforcement of any payment of principal hereof
or any interest on or after the respective due dates expressed herein.
Neither the Company, Post GP Holdings nor any other partner of the
Issuer shall have any obligation or liability for payment of the Notes, and
holders of the Notes will have no claims or other recourse against the Company,
Post GP Holdings or any other partner of the Issuer, or against any assets of
the Company, Post GP Holdings or any other partner of the Issuer, in respect of
the Notes; and the holders of the Notes shall not have any right to enforce any
obligation of a partner to make a contribution to the Issuer under any provision
of the Agreement of Limited Partnership. Neither the Company, Post GP Holdings
nor any other partner of the Issuer nor any of their respective assets shall be
subject to any lien, levy, execution or any other enforcement procedure relating
directly or indirectly to the Notes or any obligations hereunder;
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provided, however, that in the event of a dissolution of the Issuer, any assets
of the Issuer that are received by the Company or Post GP Holdings in such
dissolution shall be subject to the claims of the holders of the Notes for the
enforcement of payment thereof. The Issuer covenants that Post GP Holdings shall
not acquire any assets other than interests in the Issuer and other than such
bank accounts or similar instruments or accounts as necessary to carry out its
responsibilities under the Agreement of Limited Partnership of the Issuer
without the prior written consent of a majority in principal amount of all of
the outstanding Notes. A breach of the foregoing covenant by the Issuer, and
continuance of such breach for a period of 60 days after there has been given,
by registered or certified mail, to the Issuer by the Trustee or to the Issuer
and the Trustee by the holders of at least 25% in principal amount of the
outstanding Notes a written notice as set forth in the Indenture, shall be an
event of default under the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer and the Trustee with the consent of the Holders of not less
than a majority in principal amount of the Outstanding Notes. The Indenture also
contains provisions permitting the Holders of not less than a majority in
principal amount of the Notes at the time Outstanding, on behalf of the Holders
of all Notes, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on, this Note at the times, place 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 Note is registrable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Issuer in any Place of Payment where the principal of, premium, if any, and
interest on, this Note are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Issuer and the
Security Registrar for the Notes duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereon one or more Notes of this
series, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of this series of a
different authorized denomination, as requested by the Holder surrendering the
same.
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No service charge shall be made for any registration of transfer or
exchange, but the Issuer 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 Note for registration of transfer, the
Issuer, the Trustee and any authorized agent of the Issuer or the Trustee may
treat the Person in whose name this Note is registered as the owner hereof for
all purposes, whether or note this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE NOTES INCLUDING THIS NOTE, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE, EXCEPT AS
MAY OTHERWISE BE REQUIRED BY MANDATORY PROVISIONS OF LAW.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP" numbers to be
printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the correctness or accuracy of such CUSIP numbers
as printed on the Notes, and reliance may be placed only on the other
identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purposes.
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under this corporate seal this 12th day of March, 2001.
POST APARTMENT HOMES, L.P.
By: Post GP Holdings, Inc.
as General Partner
By:
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R. Gregory Fox
Executive Vice President and
Chief Financial Officer
Attest:
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Sherry W. Cohen
Executive Vice President and Secretary
[SEAL]
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
SUNTRUST BANK, as Trustee
By:
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Authorized Officer
By:
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Authorized Officer
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers to
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBERS OF ASSIGNS
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- --------------------------------------------------------------------------------
(Please Print or Typewrite Name and Address Including Zip Code of Assignee
- --------------------------------------------------------------------------------
the within Note of Post Apartment Homes, L.P. and
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hereby does irrevocably constitute and appoint
- --------------------------------------------------------------------------------
Attorney to transfer said Note on the books of the within-named Trust with Full
power of substitution in the premises.
Dated:
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-----------------------------------
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever.
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