exv4w2



 





Exhibit 4.2




BAY APARTMENT COMMUNITIES, INC.




Issuer




to




STATE STREET BANK AND TRUST COMPANY




Trustee




 






First Supplemental Indenture




Dated as of January 20, 1998




 






$50,000,000

of

6.250% Senior Notes due 2003




$50,000,000

of

6.500% Senior Notes due 2005




$50,000,000

of

6.625% Senior Notes due 2008




 









 





     FIRST SUPPLEMENTAL INDENTURE, dated as of January 20, 1998 (the “Supplemental Indenture”),
between BAY APARTMENT COMMUNITIES, INC., a corporation duly organized and existing under the laws
of the State of Maryland (herein called the “Company”), and STATE STREET BANK AND TRUST COMPANY, a
trust company organized and existing under the laws of The Commonwealth of Massachusetts, as
Trustee (herein called the “Trustee”).



RECITALS OF THE COMPANY




     The Company has heretofore delivered to the Trustee an Indenture dated as of January 16, 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 Company’s
Registration Statement on Form S-3, as amended (File No. 333-41511), providing for the issuance
from time to time of Senior Debt Securities of the Company (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 Company 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 the Company has duly adopted resolutions authorizing the Company 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 each 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 the Notes or for either thereof, as follows:



ARTICLE ONE — RELATION TO SENIOR INDENTURE; DEFINITIONS.




     SECTION 1.1. Relation to Senior Indenture. This Supplemental Indenture constitutes an
integral part of the Senior Indenture.



2









 





     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;




          (2) All references herein to Articles and Sections, unless otherwise specified, refer to the
corresponding Articles and Sections of this Supplemental Indenture; and




          (3) In the event that any of the following definitions differs from its respective definition
set forth in the Senior Indenture, the definition set forth herein shall control.




          “Acquired Indebtedness” means Indebtedness 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 Indebtedness incurred in connection with, or in contemplation of, such
Person becoming a Subsidiary or such acquisition. Acquired Indebtedness 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.




          “Annual Service Charge” for any period means the maximum amount which is payable during such
period for interest on, and original issue discount of, Indebtedness of the Company and its
Subsidiaries and the amount of dividends which are payable during such period in respect of any
Disqualified Stock.




          “Business Day” means any day, other than a Saturday or Sunday, that is neither a legal holiday
nor a day on which banking institutions in the City of New York or in the City of Chicago are
authorized or required by law, regulation or executive order to close.




          “Capital Stock” means, with respect to any Person, any capital stock (including preferred
stock), shares, interests, participations or other ownership interests (however designated) of such
Person and any rights (other than debt securities convertible into or exchangeable for corporate
stock), warrants or options to purchase any thereof.




          “Consolidated Income Available for Debt Service” for any period means Earnings from Operations
of the Company and its Subsidiaries, plus amounts which have been deducted, and minus amounts which
have been added, for the following (without duplication): (i) interest on Indebtedness of the
Company and its Subsidiaries, (ii) provision for taxes of the Company and its Subsidiaries based on
income, (iii) amortization of debt discount and other deferred financing costs, (iv) provisions for
gains and losses on properties and property depreciation and amortization, (v) the effect of any
noncash charge resulting from a change in accounting principles in determining Earnings from
Operations for such period and (vi) amortization of deferred charges.




3









 





          “Corporate Trust Office” 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 Two International Place, Boston, Massachusetts 02110 and, for purposes of the Place of
Payment provisions of Sections 305 and 1002 of the Senior Indenture, is located at the office of
State Street Bank and Trust Company, N.A., 61 Broadway, New York, New York 10005.




          “Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which
by the terms of such Capital Stock (or by the terms of any security into which it is convertible or
for which it is exchangeable or exercisable), upon the happening of any event or otherwise (i)
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other
than Capital Stock which is redeemable solely in exchange for common stock), (ii) is convertible
into or exchangeable or exercisable for Indebtedness or Disqualified Stock or (iii) is redeemable
at the option of the holder thereof, in whole or in part (other than Capital Stock which is
redeemable solely in exchange for Capital Stock which is not Disqualified Stock), in each case on
or prior to the Stated Maturity of the Notes.




          “Earnings from Operations” for any period means net earnings excluding gains and losses on
sales of investments, extraordinary items, and property valuation losses, net as reflected in the
financial statements of the Company and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.




          “Encumbrance” means any mortgage, lien, charge, pledge or security interest of any kind.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder by the Commission.




          “GAAP” means generally accepted accounting principles as used in the United States applied on
a consistent basis as in effect from time to time; provided that solely for purposes of any
calculation required by the financial covenants contained herein, “GAAP” shall mean generally
accepted accounting principles as used in the United States on the date hereof, applied on a
consistent basis.




          “Indebtedness” of the Company or any Subsidiary means, without duplication, any indebtedness
of the Company or any Subsidiary, whether or not contingent, in respect of (i) borrowed money or
evidenced by bonds, notes, debentures or similar instruments, (ii) indebtedness for borrowed money
secured by any Encumbrance existing on property owned by the Company or any Subsidiary, (iii) the
reimbursement obligations, contingent or otherwise, in connection with any letters of credit
actually issued (other than letters of credit issued to provide credit enhancement or support with
respect to other indebtedness of the Company or any





4









 







Subsidiary otherwise reflected as Indebtedness
hereunder) or amounts representing the balance deferred and unpaid of the purchase price of any
property or services, except any such balance
that constitutes an accrued expense or trade payable, or all conditional sale obligations or
obligations under any title retention agreement, (iv) the principal amount of all obligations of
the Company or any Subsidiary with respect to redemption, repayment or other repurchase of any
Disqualified Stock, (v) any lease of property by the Company or any Subsidiary as lessee which is
reflected on the Company’s consolidated balance sheet as a capitalized lease in accordance with
GAAP, or (vi) interest rate swaps, caps or similar agreements and foreign exchange contracts,
currency swaps or similar agreements, to the extent, in the case of items of indebtedness under (i)
through (iii) above, that any such items (other than letters of credit) would appear as a liability
on the Company’s consolidated balance sheet in accordance with GAAP, and also includes, to the
extent not otherwise included, any obligation by the Company 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 Company or any Subsidiary) (it
being understood that Indebtedness shall be deemed to be incurred by the Company or any Subsidiary
whenever the Company or such Subsidiary shall create, assume, guarantee or otherwise become liable
in respect thereof).




          “Make-Whole Amount” means, in connection with any optional redemption or accelerated payment
of any 2003 Note, 2005 Note or 2008 Note, as the case may be, the excess, if any, of (i) the
aggregate present value as of the date of such redemption or accelerated payment of each dollar of
principal being redeemed or paid and the amount of interest (exclusive of interest accrued to the
date of redemption or accelerated payment) that would have been payable in respect of such dollar
if such redemption or accelerated payment had not been made, determined by discounting, on a
semi-annual basis, such principal and interest at the Reinvestment Rate (determined on the third
Business Day preceding the date such notice of Redemption is given or declaration of acceleration
is made) from the respective dates on which such principal and interest would have been payable if
such redemption or accelerated payment had not been made, over (ii) the aggregate principal amount
of the Notes being redeemed or paid.




          “Notes” has the meaning specified in Section 2.1 hereof.




          “Reinvestment Rate” means .25% (twenty-five one hundredths of one percent) plus the arithmetic
mean of the yields under the respective headings “This Week” and “Last Week” published in the
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 such purposes of calculating





5









 







the Reinvestment Rate, the 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 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 Company.




          "Subsidiary” means, with respect to any Person, any corporation, limited liability company,
partnership or other entity of which a majority of (i) the voting power of the voting equity
securities or (ii) the outstanding equity interests are owned, directly or indirectly, by such
Person. For the purposes of this definition, “voting equity securities” means equity securities
having voting power for the election of directors, whether at all times or only so long as no
senior class of security has such voting power by reason of any contingency.




          “Total Assets” as of any date means the sum of (i) the Undepreciated Real Estate Assets and
(ii) all other assets of the Company and its Subsidiaries determined in accordance with GAAP (but
excluding accounts receivable and intangibles).




          “Total Unencumbered Assets” means the sum of (i) those Undepreciated Real Estate Assets not
subject to an Encumbrance for borrowed money and (ii) all other assets of the Company and its
Subsidiaries not subject to an Encumbrance for borrowed money, determined in accordance with GAAP
(but excluding accounts receivable and intangibles).




          “2003 Notes” has the meaning specified in Section 2.1 hereof.




          “2005 Notes” has the meaning specified in Section 2.1 hereof.




          “2008 Notes” has the meaning specified in Section 2.1 hereof.




          “Undepreciated Real Estate Assets” as of any date means the cost (original cost plus capital
improvements) of real estate assets of the Company and its Subsidiaries on such date, before
depreciation and amortization, determined on a consolidated basis in accordance with GAAP.




          “Unsecured Indebtedness” means Indebtedness which is not secured by any Encumbrance upon any
of the properties of the Company or any Subsidiary.




<@CWEOP:15>






6









 





ARTICLE TWO — THE SERIES OF NOTES.





     The following provisions of this Article Two are made pursuant to Section 301 of the Senior
Indenture in order to establish and set forth the terms of the series of Securities described in
Section 2.1.



     SECTION 2.1. Title of the Securities. There shall be a series of Securities
designated the “6.250% Senior Notes due 2003” (the “2003 Notes”), a series of Securities designated
the “6.500% Senior Notes due 2005” (the “2005 Notes”) and a series of Securities designated the
“6.625% Senior Notes due 2008” (the “2008 Notes” and, together with the 2003 Notes and the 2005
Notes, the “Notes”).



     SECTION 2.2. Limitation on Aggregate Principal Amount.



     (1) The aggregate principal amount of the 2003 Notes shall be limited to $50,000,000, and,
except as provided in this Section and in Section 306 of the Senior Indenture, the Company shall
not execute and the Trustee shall not authenticate or deliver 2003 Notes in excess of such
aggregate principal amount.



     (2) The aggregate principal amount of the 2005 Notes shall be limited to $50,000,000, and,
except as provided in this Section and in Section 306 of the Senior Indenture, the Company shall
not execute and the Trustee shall not authenticate or deliver 2005 Notes in excess of such
aggregate principal amount.



     (3) The aggregate principal amount of the 2008 Notes shall be limited to $50,000,000, and,
except as provided in this Section and in Section 306 of the Senior Indenture, the Company shall
not execute and the Trustee shall not authenticate or deliver 2008 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 Company 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 2003 Notes will
bear interest at a rate of 6.250% per annum, the 2005 Notes will bear interest at a rate of 6.500%
per annum and the 2008 Notes will bear interest at a rate of 6.625% per annum, in each case, from
January 15, 1998 or from the immediately preceding Interest Payment Date to which interest has been
paid or duly provided for, payable semi-annually in arrears on January 15 and July 15 of each year,
commencing July 15, 1998 (each, an “Interest Payment Date”), to the Person in whose name such Note
is registered at the close of business on December 31 or June 30 (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date (each, a “Regular Record Date”).
Interest will be computed on the basis of a 360-day year



7









 




comprised of twelve 30-day months. The
interest so payable on any Note which is not punctually paid or duly provided for on any Interest
Payment Date shall forthwith cease to be payable to the Person in whose name such Note is
registered on the relevant Regular Record Date, and such defaulted interest shall instead be
payable to the Person in whose name such Note is registered on
the Special Record Date or other specified date determined in accordance with the Senior
Indenture.




     If any Interest Payment Date or Maturity falls on a day that is not a Business Day, the
required payment shall be made 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 2003 Notes will mature on January 15, 2003, the 2005 Notes will mature on January 15, 2005
and the 2008 Notes will mature on January 15, 2008.



     SECTION 2.4. Limitations on Incurrence of Indebtedness.



          (1) The Company will not, and will not permit any Subsidiary to, incur any Indebtedness if,
immediately after giving effect to the incurrence of such additional Indebtedness and the
application of the proceeds thereof, the aggregate principal amount of all outstanding Indebtedness
of the Company and its Subsidiaries on a consolidated basis determined in accordance with GAAP is
greater than 60% of the sum of (without duplication) (i) the Total Assets of the Company and its
Subsidiaries as of the end of the calendar quarter covered in the Company’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 Indebtedness and (ii) the purchase price of any real estate assets or
mortgages receivable acquired, and the amount of any securities offering proceeds received (to the
extent that such proceeds were not used to acquire real estate assets or mortgages receivable or
used to reduce Indebtedness), by the Company or any Subsidiary since the end of such calendar
quarter, including those proceeds obtained in connection with the incurrence of such additional
Indebtedness.




          (2) In addition to the limitation set forth in subsection (1) of this Section 2.4, the Company
will not, and will not permit any Subsidiary to, incur any Indebtedness 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
Indebtedness 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 Indebtedness and any other Indebtedness incurred by the Company and its Subsidiaries
since the first day of such four-quarter period and the application of the proceeds therefrom,
including to refinance other Indebtedness, had occurred at the beginning of such period; (ii) the
repayment or retirement of any other Indebtedness by the Company and its





8









 







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 Indebtedness under any revolving credit
facility shall be computed based upon the average daily balance of such Indebtedness during such
period); (iii) in the case of Acquired Indebtedness or Indebtedness 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 Company 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
Indebtedness had occurred as of the first day of such period with the appropriate adjustments with
respect to such acquisition or disposition being included in such pro forma calculation.




          (3) In addition to the limitations set forth in subsections (1) and (2) of this Section 2.4,
the Company will not, and will not permit any Subsidiary to, incur any Indebtedness secured by any
Encumbrance upon any of the property of the Company or any Subsidiary if, immediately after giving
effect to the incurrence of such additional Indebtedness and the application of the proceeds
thereof, the aggregate principal amount of all outstanding Indebtedness of the Company and its
Subsidiaries on a consolidated basis which is secured by any Encumbrance on property of the Company
or any Subsidiary is greater than 40% of the sum of (without duplication) (i) the Total Assets of
the Company and its Subsidiaries as of the end of the calendar quarter covered in the Company’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 Indebtedness and (ii) the purchase price of any
real estate assets or mortgages receivable acquired, and the amount of any securities offering
proceeds received (to the extent that such proceeds were not used to acquire real estate assets or
mortgages receivable or used to reduce Indebtedness), by the Company or any Subsidiary since the
end of such calendar quarter, including those proceeds obtained in connection with the incurrence
of such additional Indebtedness.




          (4) The Company and its Subsidiaries may not at any time own Total Unencumbered Assets equal
to less than 150% of the aggregate outstanding principal amount of the Unsecured Indebtedness of
the Company and its Subsidiaries on a consolidated basis.




          (5) For purposes of this Section 2.4, Indebtedness shall be deemed to be “incurred” by the
Company or a Subsidiary whenever the Company or such Subsidiary shall create, assume, guarantee or
otherwise become liable in respect thereof.




     SECTION 2.5. Redemption. The Notes may be redeemed at any time at the option of the
Company, in whole or in part, at a redemption price equal to the sum of (i) the principal amount



9









 




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 Company in respect of the
Notes and the Senior Indenture may be served shall be in (i) the Borough of Manhattan, The
City of New York, New York, and the office or agency for such purpose shall initially be located
at the office of State Street Bank and Trust Company, 61 Broadway, New York, New York 10005, and
(ii) the City of Boston, Massachusetts and the office or agency for such purpose shall initially be
located at the Corporate Trust Office.



     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 Company maintained for that purpose in the Borough of
Manhattan, The City of New York (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
Company, 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 U.S.
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 2003 Notes,
the 2005 Notes and the 2008 Notes each 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.



     SECTION 2.10. Form of Notes. The 2003 Notes shall be substantially in the form
attached hereto as Exhibit A. The 2005 Notes shall be substantially in the form attached
hereto as Exhibit B. The 2008 Notes shall be substantially in the form attached hereto as
Exhibit C.



     SECTION 2.11. Registrar and Paying Agent. The Trustee shall initially serve as
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,



10









 




shall be applicable to the Notes. The provisions of Section 1403 of the Senior Indenture shall
<@CWEOP:4>apply to the covenants set forth in Sections 2.4 and 2.15 of this Supplemental
Indenture and to those covenants specified in Section 1403 of the Senior Indenture.




     SECTION 2.13. Events of Default. The provisions of clause (5) of Section 501 of the
Senior Indenture as applicable with respect to the Notes shall be deemed to be amended and restated
in their entirety to read as follows:



          (5) default under any bond, debenture, note, mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any indebtedness for money
borrowed by the Company (or by any Subsidiary, the repayment of which the Company has guaranteed or
for which the Company is directly responsible or liable as obligor or guarantor), having an
aggregate principal amount outstanding of at least $10,000,000, whether such indebtedness now
exists or shall hereafter be created, which default shall have resulted in such indebtedness
becoming or being declared due and payable prior to the date on which it would otherwise have
become due and payable, without such indebtedness having been discharged, or such acceleration
having been rescinded or annulled, within a period of 10 days after there shall have been given
written notice, by registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 10% in principal amount of the Outstanding Securities of
that series a written notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be rescinded or annulled and stating
that such notice is a “Notice of Default” hereunder; provided, however, that such a default on
indebtedness which constitutes tax-exempt financing having an aggregate principal amount
outstanding not exceeding $25,000,000 that results solely from a failure of an entity providing
credit support for such indebtedness to honor a demand for payment on a letter of credit shall not
constitute an Event of Default.




     SECTION 2.14. Acceleration of Maturity; Rescission and Annulment. The provisions of
the first paragraph of Section 502 of the Senior Indenture as applicable with respect to the Notes
shall be deemed to be amended and restated in their entirety to read as follows:



          If an Event of Default with respect to Securities of any series at the time Outstanding occurs
and is continuing, then in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of that series may declare the principal amount (or,
if Securities of that series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of, and the Make-Whole Amount,
if any, on, all the Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders), and upon any such declaration
such principal or specified portion thereof shall become immediately due and payable. If an Event
of Default with respect to the Securities of any series set forth in Section 501(6) of the Senior
Indenture occurs and is continuing, then in every such case all the Securities of that series shall
become immediately due and payable, without notice to





11









 







the Company, at the principal amount thereof
(or, if any Securities are Original Issue Discount Securities or Indexed Securities, such portion
of the principal as may be specified in the terms thereof) plus accrued interest to the date the
Securities of that series are paid, plus the Make-Whole Amount, if any, on the Securities of that
series.




     SECTION 2.15. Provision of Financial Information. Whether or not the Company is
subject to Section 13 or 15(d) of the Exchange Act, the Company will, to the extent permitted under
the Exchange Act, file with the Commission the annual reports, quarterly reports and other
documents which the Company would have been required to file with the Commission pursuant to
such Section 13 or 15(d) if the Company 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 Company
would have been required so to file such documents if the Company were so subject.



     The Company will also in any event (x) within 15 days of each Required Filing Date (i) if the
Company 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, quarterly reports and other documents which the Company
would have been required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act if the Company were subject to such Sections and (ii) file with the Trustee copies of
annual reports, quarterly reports and other documents which the Company is required to file with
the Commission or would have been required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act if the Company were subject to such Sections and (y) supply, promptly
upon written request and payment of the reasonable cost of duplication and delivery, copies of such
documents to any prospective Holder.



     The Trustee shall not be required to examine any of the reports and other documents filed
therewith pursuant to the provisions of this Section 2.15 or Section 7.03 of the Senior Indenture
in order to determine whether the Company is in compliance with the provisions of Section 2.4 of
this Supplemental Indenture.



     SECTION 2.16. Waiver of Certain Covenants. Notwithstanding the provisions of Section
1009 of the Senior Indenture, the Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1008, inclusive, of the Senior
Indenture, with Sections 2.4 and 2.15 of this Supplemental Indenture and with any other term,
provision or condition with respect to the Notes (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, 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
Company and the duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.



12









 





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 the Notes 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.


[Remainder of Page Intentionally Left Blank.]




13









 





     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.



	 	 	 	 	 	 	 	 	 
	 	 	BAY APARTMENT COMMUNITIES, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Gilbert M. Meyer	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Gilbert M. Meyer	 	 
	 	 	Title:	 	Chairman of the Board, President and	 	 
	 

	 	 	 	 	 	Chief Executive Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	STATE STREET BANK AND TRUST COMPANY,	 	 
	 	 	     as Trustee	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Robert J. Dunn	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Robert J. Dunn	 	 
	 	 	Title:	 	Vice President	 	 






14









 






Exhibit A to Supplemental Indenture



UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY,
A NEW YORK CORPORATION (“DTC”), 55 WATER STREET, NEW YORK, NEW YORK, TO THE COMPANY (AS DEFINED
BELOW) 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.



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 ANOTHER NOMINEE OF DTC OR BY DTC OR ITS NOMINEE TO A SUCCESSOR
DEPOSITORY OR ITS NOMINEE.




BAY APARTMENT COMMUNITIES, INC.

6.250% SENIOR NOTE DUE 2003




	 	 	 	 	 
	Registered No. 1

	 	PRINCIPAL AMOUNT

	CUSIP No.: 072012 AA 5

	 	$	50,000,000	 






     BAY APARTMENT COMMUNITIES, INC., a corporation duly organized and existing under the laws of
the State of Maryland (herein referred to as the “Company” which term shall include any successor
corporation under the Indenture hereinafter referred to), for value received, hereby promises to
pay to CEDE & CO., or registered assigns, upon presentation, the principal sum of $50,000,000 on
January 15, 2003 and to pay interest on the outstanding principal amount thereon from January 15,
1998, or from the immediately preceding Interest Payment Date to which interest has been paid or
duly provided for, semi-annually in arrears on January 15 and July 15 in each year, commencing July
15, 1998, at the rate of 6.250% per annum, until the entire



A-1









 




principal hereof is paid or made
available for payment. The interest so payable and punctually
paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be
paid to the Holder in whose name this Security is registered at the close of business on the
Regular Record Date for such interest which shall be December 31 or June 30 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date. 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 Holder in whose name this Security 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 the Holder of this Security
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 this Security may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. Payment of the principal of and interest on
this Security will be made at the office or agency maintained for that purpose in the City of New
York, New York, or elsewhere as provided in the Indenture, 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 Company 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 Holder entitled thereto as such address shall appear
in the Security Register or (ii) by wire transfer to an account of the Holder entitled thereto
located within the United States.




     Securities of this series are one of a duly authorized issue of securities of the Company
(herein called the “Securities”), issued and to be issued in one or more series under an Indenture,
dated as of January 16, 1998, as supplemented by the First Supplemental Indenture, dated as of
January 20, 1998 (as so supplemented, herein called the “Indenture”), between the Company and State
Street Bank and Trust Company (herein called the “Trustee,” which term includes any successor
trustee under the Indenture), 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 Company, the Trustee and the Holders of the Securities and of the
terms upon which the Securities are authenticated and delivered. This Security is one of the
series designated in the first page hereof, limited in aggregate principal amount to $50,000,000.



     Securities of this series may be redeemed at any time at the option of the Company, in whole
or in part, upon notice of not more than 60 nor less than 30 days prior to the Redemption Date, 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.



A-2









 





     The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of
the Company on this Security and (b) certain restrictive covenants and the related defaults and
Events of Default applicable to the Company, in each case, upon compliance by the Company with
certain conditions set forth in the Indenture, which provisions apply to this Security.



     If an Event of Default with respect to the Securities shall occur and be continuing, the
principal of the Securities may be declared 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 Security
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 written notice to the Trustee of a continuing Event of Default with respect
to the Securities, the Holders of not less than 25% in principal amount of the Securities of this
series at the time outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default 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 Securities of this series 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 Security 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 Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of not less than a majority in principal amount of all
outstanding Securities. The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time outstanding, on behalf
of the Holders of all Securities of such series, to waive compliance by the Company 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 Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security 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 Company, which is absolute and unconditional, to pay
the principal of (and Make-Whole Amount, if any) and interest on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.



A-3









 





     As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any Place of Payment 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 Company
and the Security Registrar duly executed by the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated transferee or
transferees.



     The Securities of this series 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, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series of a different authorized
denomination, as requested by the Holder surrendering the same.



     No service charge shall be made for any such registration of transfer or exchange, but the
Company 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 Company, the
Trustee and any agent of the Company 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 Company, the Trustee nor any such agent shall be affected by notice 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, shall be had against
any promoter, as such, or against any past, present or future shareholder, officer or director, as
such, of the Company or of any successor, either directly or through 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 expressly waived and
released by the acceptance of this Security by the Holder thereof and as part of the consideration
for the issue of the Securities of this series.



     All capitalized terms used in this Security which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.



     THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.



A-4









 





     Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company 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 or on behalf of the
Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.



A-5









 





     IN WITNESS WHEREOF, BAY APARTMENT COMMUNITIES, INC. has caused this instrument to be duly
executed under its corporate seal.


Dated:




	 	 	 	 	 	 	 	 	 
	 	 	BAY APARTMENT COMMUNITIES, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Gilbert M. Meyer	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Gilbert M. Meyer	 	 
	 	 	Title:	 	Chairman of the Board, President and	 	 
	 

	 	 	 	 	 	Chief Executive Officer	 	 





[Corporate Seal]



Attest:




	 	 	 
	/s/ Jeffrey B. VanHorn
 

Secretary

	 	 






TRUSTEE’S CERTIFICATE OF AUTHENTICATION:




     This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.



	 	 	 	 	 	 	 	 	 
	 	 	STATE STREET BANK AND TRUST COMPANY,                     as Trustee
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Robert J. Dunn	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Robert J. Dunn	 	 
	 	 	Title:	 	Vice President	 	 






A-6









 








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 Bay Apartment Communities, Inc. and hereby does irrevocably constitute and
appoint



 




Attorney to transfer said Security on the books of the within-named Company 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.





A-7









 








Exhibit B to Supplemental Indenture



UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY,
A NEW YORK CORPORATION (“DTC”), 55 WATER STREET, NEW YORK, NEW YORK, TO THE COMPANY (AS DEFINED
BELOW) 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.



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 ANOTHER NOMINEE OF DTC OR BY DTC OR ITS NOMINEE TO A SUCCESSOR
DEPOSITORY OR ITS NOMINEE.




BAY APARTMENT COMMUNITIES, INC.

6.500% SENIOR NOTE DUE 2005




	 	 	 	 	 
	Registered No. 1

	 	PRINCIPAL AMOUNT


	CUSIP No.: 072012 AB 3

	 	$	50,000,000	 






     BAY APARTMENT COMMUNITIES, INC., a corporation duly organized and existing under the laws of
the State of Maryland (herein referred to as the “Company” which term shall include any successor
corporation under the Indenture hereinafter referred to), for value received, hereby promises to
pay to CEDE & CO., or registered assigns, upon presentation, the principal sum of $50,000,000 on
January 15, 2005 and to pay interest on the outstanding principal amount thereon from January 15,
1998, or from the immediately preceding Interest Payment Date to which interest has been paid or
duly provided for, semi-annually in arrears on January 15 and July 15 in each year, commencing July
15, 1998, at the rate of 6.500% per annum, until the entire



B-1









 




principal hereof is paid or made
available for payment. The interest so payable and punctually
paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be
paid to the Holder in whose name this Security is registered at the close of business on the
Regular Record Date for such interest which shall be December 31 or June 30 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date. 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 Holder in whose name this Security 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 the Holder of this Security
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 this Security may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. Payment of the principal of and interest on
this Security will be made at the office or agency maintained for that purpose in the City of New
York, New York, or elsewhere as provided in the Indenture, 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 Company 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 Holder entitled thereto as such address shall appear
in the Security Register or (ii) by wire transfer to an account of the Holder entitled thereto
located within the United States.




     Securities of this series are one of a duly authorized issue of securities of the Company
(herein called the “Securities”), issued and to be issued in one or more series under an Indenture,
dated as of January 16, 1998, as supplemented by the First Supplemental Indenture, dated as of
January 20, 1998 (as so supplemented, herein called the “Indenture”), between the Company and State
Street Bank and Trust Company (herein called the “Trustee,” which term includes any successor
trustee under the Indenture), 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 Company, the Trustee and the Holders of the Securities and of the
terms upon which the Securities are authenticated and delivered. This Security is one of the
series designated in the first page hereof, limited in aggregate principal amount to $50,000,000.



     Securities of this series may be redeemed at any time at the option of the Company, in whole
or in part, upon notice of not more than 60 nor less than 30 days prior to the Redemption Date, 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.



B-2









 





     The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of
the Company on this Security and (b) certain restrictive covenants and the related defaults and
Events of Default applicable to the Company, in each case, upon compliance by the Company with
certain conditions set forth in the Indenture, which provisions apply to this Security.



     If an Event of Default with respect to the Securities shall occur and be continuing, the
principal of the Securities may be declared 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 Security
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 written notice to the Trustee of a continuing Event of Default with respect
to the Securities, the Holders of not less than 25% in principal amount of the Securities of this
series at the time outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default 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 Securities of this series 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 Security 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 Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of not less than a majority in principal amount of all
outstanding Securities affected thereby. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each series at the time
outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the
Company 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 Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of any Security
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 Company, which is absolute and unconditional, to pay
the principal of (and Make-Whole Amount, if any) and interest on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.



B-3









 





     As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any Place of Payment 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 Company
and the Security Registrar duly executed by the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated transferee or
transferees.



     The Securities of this series 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, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series of a different authorized
denomination, as requested by the Holder surrendering the same.



     No service charge shall be made for any such registration of transfer or exchange, but the
Company 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 Company, the
Trustee and any agent of the Company 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 Company, the Trustee nor any such agent shall be affected by notice 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, shall be had against
any promoter, as such, or against any past, present or future shareholder, officer or director, as
such, of the Company or of any successor, either directly or through 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 expressly waived and
released by the acceptance of this Security by the Holder thereof and as part of the consideration
for the issue of the Securities of this series.



     All capitalized terms used in this Security which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.



     THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.



B-4









 





     Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company 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 or on behalf of the
Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.



B-5









 





     IN WITNESS WHEREOF, BAY APARTMENT COMMUNITIES, INC. has caused this instrument to be duly
executed under its corporate seal.


Dated:




	 	 	 	 	 	 	 	 	 
	 	 	BAY APARTMENT COMMUNITIES, INC.
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/  Gilbert M. Meryer	 	 
	 

	 	 	 	Name:
	 	Gilbert M. Meyer	 	 
	 

	 	 	 	Title:
	 	Chairman of the Board, President and Chief Executive Officer	 	 
	 

	 	 	 	 	 	 	 	 






[Corporate Seal]




Attest:   /s/  Jeffrey B. VanHorn                    
                    



Secretary




TRUSTEE’S CERTIFICATE OF AUTHENTICATION:




     This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.



	 	 	 	 	 	 	 	 	 
	 	 	STATE STREET BANK AND TRUST COMPANY,                     as Trustee
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/  Robert J. Dunn	 	 
	 

	 	 	 	Name:
	 	Robert J. Dunn	 	 
	 

	 	 	 	Title:
	 	Vice President	 	 







B-6









 








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 Bay Apartment Communities, Inc. and hereby does irrevocably constitute and
appoint



 




Attorney to transfer said Security on the books of the within-named Company 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.





B-7









 








Exhibit C to Supplemental Indenture



UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY,
A NEW YORK CORPORATION (“DTC”), 55 WATER STREET, NEW YORK, NEW YORK, TO THE COMPANY (AS DEFINED
BELOW) 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.



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 ANOTHER NOMINEE OF DTC OR BY DTC OR ITS NOMINEE TO A SUCCESSOR
DEPOSITORY OR ITS NOMINEE.




BAY APARTMENT COMMUNITIES, INC.

6.625% SENIOR NOTE DUE 2008




	 	 	 	 	 
	Registered No. 1

	 	PRINCIPAL AMOUNT

	CUSIP No.: 072012 AC 1

	 	$	50,000,000	 






     BAY APARTMENT COMMUNITIES, INC., a corporation duly organized and existing under the laws of
the State of Maryland (herein referred to as the “Company” which term shall include any successor
corporation under the Indenture hereinafter referred to), for value received, hereby promises to
pay to CEDE & CO., or registered assigns, upon presentation, the principal sum of $50,000,000 on
January 15, 2008 and to pay interest on the outstanding principal amount thereon from January 15,
1998, or from the immediately preceding Interest Payment Date to which interest has been paid or
duly provided for, semi-annually in arrears on January 15 and July 15 in each year, commencing July
15, 1998, at the rate of 6.625% per annum, until the entire



C-1









 




principal hereof is paid or made
available for payment. The interest so payable and punctually
paid or duly provided for on any Interest Payment Date will, as provided in the Indenture, be
paid to the Holder in whose name this Security is registered at the close of business on the
Regular Record Date for such interest which shall be December 31 or June 30 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date. 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 Holder in whose name this Security 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 the Holder of this Security
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 this Security may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. Payment of the principal of and interest on
this Security will be made at the office or agency maintained for that purpose in the City of New
York, New York, or elsewhere as provided in the Indenture, 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 Company 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 Holder entitled thereto as such address shall appear
in the Security Register or (ii) by wire transfer to an account of the Holder entitled thereto
located within the United States.




     Securities of this series are one of a duly authorized issue of securities of the Company
(herein called the “Securities”), issued and to be issued in one or more series under an Indenture,
dated as of January 16, 1998, as supplemented by the First Supplemental Indenture, dated as of
January 20, 1998 (as so supplemented, herein called the “Indenture”), between the Company and State
Street Bank and Trust Company (herein called the “Trustee,” which term includes any successor
trustee under the Indenture), 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 Company, the Trustee and the Holders of the Securities and of the
terms upon which the Securities are authenticated and delivered. This Security is one of the
series designated in the first page hereof, limited in aggregate principal amount to $50,000,000.



     Securities of this series may be redeemed at any time at the option of the Company, in whole
or in part, upon notice of not more than 60 nor less than 30 days prior to the Redemption Date, 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.




C-2









 








     The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of
the Company on this Security and (b) certain restrictive covenants and the related defaults and
Events of Default applicable to the Company, in each case, upon compliance by the Company with
certain conditions set forth in the Indenture, which provisions apply to this Security.



     If an Event of Default with respect to the Securities shall occur and be continuing, the
principal of the Securities may be declared 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 Security
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 written notice to the Trustee of a continuing Event of Default with respect
to the Securities, the Holders of not less than 25% in principal amount of the Securities of this
series at the time outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default 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 Securities of this series 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 Security 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 Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of not less than a majority in principal amount of all
outstanding Securities affected thereby. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each series at the time
outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the
Company 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 Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of any Security
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 Company, which is absolute and unconditional, to pay
the principal of (and Make-Whole Amount, if any) and interest on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.



C-3









 





     As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any Place of Payment 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 Company
and the Security Registrar duly executed by the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated transferee or
transferees.



     The Securities of this series 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, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series of a different authorized
denomination, as requested by the Holder surrendering the same.



     No service charge shall be made for any such registration of transfer or exchange, but the
Company 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 Company, the
Trustee and any agent of the Company 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 Company, the Trustee nor any such agent shall be affected by notice 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, shall be had against
any promoter, as such, or against any past, present or future shareholder, officer or director, as
such, of the Company or of any successor, either directly or through 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 expressly waived and
released by the acceptance of this Security by the Holder thereof and as part of the consideration
for the issue of the Securities of this series.



     All capitalized terms used in this Security which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.



     THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.



C-4









 





     Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company 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 or on behalf of the
Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.



C-5









 





     IN WITNESS WHEREOF, BAY APARTMENT COMMUNITIES, INC. has caused this instrument to be duly
executed under its corporate seal.


Dated:




	 	 	 	 	 
	 	BAY APARTMENT COMMUNITIES, INC.

 	 
	 	By:  	/s/ Gilbert M. Meyer
 	 
	 	 	Name:  	Gilbert M. Meyer 	 
	 	 	Title:  	Chairman of the Board, President and Chief Executive Officer	 
	 



[Corporate Seal]




Attest:




Secretary




TRUSTEE’S CERTIFICATE OF AUTHENTICATION:





     This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.



	 	 	 	 	 
	 	STATE STREET BANK AND TRUST COMPANY,
                     as Trustee

 	 
	 	By:  	/s/ Robert J. Dunn
 	 
	 	 	Name:  	Robert J. Dunn 	 
	 	 	Title:  	Vice President 	 
	 




C-6









 








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 Bay Apartment Communities, Inc. and hereby does irrevocably constitute and
appoint



 




Attorney to transfer said Security on the books of the within-named Company 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.





C-7