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EXHIBIT 4(b)
FORM OF NOTE
UNLESS THIS CERTIFICATE 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 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 INASMUCH 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
$25,000,000
CUSIP NO.: 737415AB5
POST APARTMENT HOMES, L.P.
7 1/2% NOTE DUE OCTOBER 1, 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
TWENTY-FIVE MILLION DOLLARS ($25,000,000.00) on October 1, 2006 (the "Maturity
Date"), and to pay interest on the outstanding principal amount thereon from
September 30, 1996, or from the most recent interest payment date to which
interest has been paid or duly provided for, semi-annually in arrears on April
1 and October 1 of each year (each an "Interest Payment Date"), commencing
April 1, 1997, and at the Stated Maturity, at the rate of 7 1/2% 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 the Regular Record Date for
such Interest Payment
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Date which shall be the 15th calendar day (regardless of whether such day is a
Business Day) preceding the applicable Interest Payment Date. 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 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 Make-Whole Amount (hereinafter defined), if any, of, 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 First National Bank of Chicago, 14
Wall Street, Suite 4607, 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, Make-Whole
Amounts, if any, and interest is 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 fifteen (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 25, 1996 (the
"Indenture"), among the Issuer and Sun Trust Bank, Atlanta (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
"7 1/2% Notes Due October 1, 2006," limited in the aggregate principal amount
to $25,000,000.
The Notes may be redeemed at any time at the option of the Issuer, in
whole or from time to time 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 (as defined
below), if any, with respect to such Notes (the "Redemption Price").
If notice has been given as provided in the Indenture and funds for
the redemption of any Notes called for redemption shall have been made
available on the redemption date referred to in such
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notice, such Notes will cease to bear interest on the date fixed for such
redemption specified in such notice and the only right of the Holders of the
Notes will be to receive payment of the Redemption Price, with respect to such
Notes or portion thereof so redeemed.
Notice of any optional redemption of any Notes will be given to
Holders at their addresses, as shown in the security register for the Notes,
not more than 60 nor less than 30 days prior to the date fixed for redemption.
The notice of redemption will specify, among other items, the Redemption Price
and the principal amount of the Notes held by such Holder to be redeemed.
If less than all the Notes are to be redeemed at the option of the
Issuer, the Issuer will notify the Trustee at least 45 days prior to giving
notice of redemption (or such shorter period as is satisfactory to the Trustee)
of the aggregate principal amount of Notes to be redeemed and their redemption
date. The Trustee shall select, in such manner as it shall deem fair and
appropriate, the Notes to be redeemed in whole or in part.
In the event of redemption of the Notes in part only, a new Note for
the amount of the unredeemed portion hereof shall be issued in the name of the
Holder hereto, upon cancellation hereof.
As used herein:
"Make-Whole Amount" means, in connection with any optional
redemption or accelerated payment of any Notes, 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 each 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 to the date
of redemption or accelerated payment, over (ii) the aggregate
principal amount of the Notes being redeemed or paid.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of
the yields under the heading "Week Ending" published in the most
recent Statistical Release under the caption "Treasury Constant
Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment
date of the principal being redeemed or paid. If no maturity exactly
corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment
Rate shall be interpolated or extrapolated from such yields on a
straight-line basis, rounding in each of such relevant periods to the
nearest month. For the purposes of calculating the Reinvestment Rate,
the
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most recent Statistical Release published prior to the date of
determination of the Make-Whole Amount shall be used.
"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 reports 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 under the Indenture, then such other reasonably
comparable index which shall be designated by the Issuer.
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:
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 the Company, the Issuer and any of their 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 Commission (or,
if such filing is not permitted under the Exchange Act, 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 of the Issuer or any Subsidiary 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.
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
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(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) such Debt and any other Debt
incurred 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 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.
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"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 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).
"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, President, Chief
Executive Officer, Chief Operating Officer, or any Executive Vice
President of the Company.
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"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
the Company, 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, the Company, 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 the Company or the Secretary of such Subsidiary, and
(ii) any other entity (other than the Company) 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 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 or
Make-Whole Amount, 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
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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.
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 or Make-Whole
Amount, 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 or Make-Whole Amount, 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.
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
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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 25th day of September, 1996.
POST APARTMENT HOMES, L.P.
By: Post Properties, Inc.
as General Partner
By:
---------------------
Name:
Title:
Attest:
By:
------------------------
Name:
----------------------
Title:
---------------------
[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, ATLANTA
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
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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