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EXHIBIT 1.1
EXECUTION COPY
$100,000,000
IRT PROPERTY COMPANY
MEDIUM-TERM NOTES
AGENCY AGREEMENT
March 23, 2001
Credit Suisse First Boston Corporation,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000.
Wachovia Securities, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
1. Introduction. IRT Property Company, a Georgia corporation (the
"ISSUER"), and IRT Partners, L.P. ("IRT PARTNERS"), IRT Capital Corporation II
("IRTCCII"), IRT Management Company ("IRT MANAGEMENT") and IRT Alabama, Inc.
(IRT ALABAMA" and, together with IRT Partners, IRTCCII and IRT Management,
collectively, the "GUARANTORS" and each, individually, a "GUARANTOR") confirm
their agreement with each of you (individually, an "AGENT" and collectively, the
"AGENTS") with respect to the issue and sale from time to time by the Issuer of
up to $100,000,000 aggregate principal amount of its medium-term notes issuable
with various terms, interest rates and other provisions, due nine months or more
from the date of issue, registered under the registration statement referred to
in Section 2(a) (any such medium-term notes being hereinafter referred to as the
"SECURITIES", which expression shall, if the context so admits, include any
permanent global Security). Securities may be offered and sold pursuant to
Section 3 of this Agreement in an aggregate amount not to exceed the amount of
Registered Securities (as defined in Section 2(a) hereof) registered pursuant to
such registration statement reduced by the aggregate amount of any other
Registered Securities sold otherwise than pursuant to Section 3 of this
Agreement. The Securities will be issued under an indenture, dated as of
September 9, 1998, as supplemented by Supplemental Indenture No. 1, dated
September 9, 1998, between the Issuer, IRT Partners, as guarantor, and the
Trustee, and Supplemental Indenture No. 2, dated as of November 1, 1999, among
the Issuer and IRTCCII, IRT Management, IRT Alabama and IRT Partners, as
guarantors, and the Trustee (as further amended and supplemented from time to
time, the "INDENTURE"). The Securities will be unconditionally guaranteed as to
the payment of principal and interest (each a "GUARANTEE" and collectively, the
"GUARANTEES") by the Guarantors.
The Securities shall have the terms described in the Prospectus
referred to in Section 2(a) as it may be amended or supplemented from time to
time, including any supplement to the Prospectus that sets forth only the terms
of a particular issue of the Securities (a "PRICING SUPPLEMENT"). Securities
will be issued, and the terms thereof established, from time to time by the
Issuer in accordance with the Indenture and the Procedures (as defined in
Section 3(d) hereof).
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2. Representations and Warranties of the Issuer and the Guarantors. The
Issuer and each of the Guarantors, jointly and severally, represent and warrant
to, and agree with, each Agent as follows:
(a) A registration statement (No. 333-53638), including a
form of prospectus, relating to $300,000,000 aggregate principal amount
or issue price, as the case may be, of debt and/or equity securities of
the Issuer, including the Securities (together, the "REGISTERED
SECURITIES") which, as supplemented by the prospectus supplement and
the applicable Pricing Supplement, in each case in the form filed with
the Securities and Exchange Commission (the "COMMISSION") pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (the "ACT")
and as such prospectus may be further supplemented from time to time,
shall be used in connection with sales of the Securities, has been
filed with the Commission and has been declared effective under the
Act. Such registration statement, as amended as of the Closing Date (as
defined in Section 3(e) hereof), is hereinafter referred to as the
"REGISTRATION STATEMENT", and the prospectus included in such
Registration Statement, as supplemented so as generally to describe the
Securities and the terms of the offering of the Securities, including
all material incorporated by reference therein, is hereinafter referred
to as the "PROSPECTUS". Any reference in this Agreement to amending or
supplementing the Prospectus shall be deemed to include the filing of
materials incorporated by reference in the Prospectus after the Closing
Date and any reference in this Agreement to any amendment or supplement
to the Prospectus shall be deemed to include any such materials
incorporated by reference in the Prospectus after the Closing Date. The
Issuer is eligible to use a Form S-3 registration statement under the
Act.
(b) On the effective date, the Registration Statement
conformed, and on the date of any subsequent post-effective amendment
or amendments to the Registration Statement, such Registration
Statement will conform, in all material respects to the requirements of
the Act, the Trust Indenture Act of 1939, as amended (the "TRUST
INDENTURE ACT"), and the rules and regulations of the Commission
("RULES AND REGULATIONS") and did not and will not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and on the Closing Date (as defined in Section
3(e)), and at each of the times of acceptance and of delivery referred
to in Section 6(a) hereof and at each of the times of amendment or
supplementing referred to in Section 6(b) hereof (the Closing Date and
each such time being herein sometimes referred to as a "REPRESENTATION
DATE"), the Registration Statement and the Prospectus as then amended
or supplemented will conform in all respects to the requirements of the
Act, the Trust Indenture Act and the Rules and Regulations, and neither
the Registration Statement nor the Prospectus will include any untrue
statement of a material fact or will omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, except that the foregoing does not apply to
statements in or omissions from any of such documents based upon
written information furnished to the Issuer by any Agent specifically
for use therein.
(c) The Issuer has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Georgia, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and the Issuer is
duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification, except
where the failure to be so qualified is not reasonably likely to result
in a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Issuer and its
subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT").
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(d) Attached hereto as Annex I is a true and complete
list of all subsidiaries of the Issuer and all other corporations,
partnerships, joint ventures, limited liability companies and other
entities in which the Issuer directly or indirectly owns 5% or more of
its capital stock or any other equity or ownership interest. Annex I
accurately sets forth the jurisdiction of organization of, and the
Issuer's approximate percentage ownership interest in, each such
subsidiary and other entity, and whether each such subsidiary and other
entity listed thereon is a corporation, partnership, limited liability
company or other type of entity.
(e) Each of IRT Partners, IRTCCII, IRT Management and IRT
Alabama and any other "significant subsidiary" of the Issuer within the
meaning of Rule 405 of the Act (individually, a "SIGNIFICANT
SUBSIDIARY" and, collectively, the "SIGNIFICANT SUBSIDIARIES") has been
duly incorporated or established, as the case may be, and is a validly
existing corporation, limited partnership or limited liability company,
as the case may be, in good standing under the laws of the jurisdiction
of its incorporation or organization, with corporate or other entity
power and authority to own its properties and conduct its business as
described in the Prospectus; and each subsidiary of the Issuer is duly
qualified to do business as a foreign corporation, limited partnership
or limited liability company, as the case may be, in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification, except where
the failure to be so qualified would not have a Material Adverse
Effect; all of the issued and outstanding capital stock or other equity
interests in each Significant Subsidiary of the Issuer has been duly
authorized and validly issued and, in the case of corporate
subsidiaries, is fully paid and nonassessable; and the capital stock or
other equity interests in each subsidiary owned by the Issuer, directly
or through subsidiaries, is owned free from liens and encumbrances.
(f) The Amended and Restated Agreement of Limited
Partnership of IRT Partners (the "PARTNERSHIP AGREEMENT") has been duly
and validly authorized, executed and delivered by the Issuer and is a
valid and binding agreement, enforceable against the Issuer, as general
partner, in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting creditors' rights generally and by general
principles of equity. To the Issuer's knowledge, the Partnership
Agreement has been duly executed and delivered by the other parties
thereto and is a valid and binding agreement, enforceable against such
parties in accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting creditors' rights generally and by general principles of
equity. The Issuer owns, directly or through IRT Management,
approximately 93% of the partnership interests in IRT Partners.
(g) No holder of outstanding shares of capital stock of
the Issuer has any registration rights with respect to such shares
which would or could require such shares to be included in the
Registration Statement.
(h) The Issuer's authorized capitalization is as set
forth in the Issuer's Annual Report on Form 10-K incorporated by
reference in the Prospectus; and the Securities and the Guarantees
conform to the description thereof contained in the Prospectus (subject
to the insertion in the Securities of the maturity dates, the interest
rates and other similar terms thereof which will be described in
supplements to the Prospectus as contemplated by Section 2(a) of this
Agreement).
(i) The Indenture has been duly authorized, executed and
delivered by the Issuer and duly qualified under the Trust Indenture
Act and constitutes a valid and legally binding obligation
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of the Issuer enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; the Securities have
been duly authorized, and when the Securities have been delivered and
paid for pursuant to this Agreement, the Securities will have been duly
executed, authenticated, issued and delivered and will conform to the
description thereof contained in the Prospectus and will constitute
valid and legally binding obligations of the Issuer enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
(j) Each Guarantee has been duly authorized, executed and
delivered by the applicable Guarantor and constitutes a valid and
legally binding obligation of such Guarantor enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(k) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this Agreement
in connection with the issuance and sale of the Securities by the
Issuer, except such as have obtained and made under the Act, the Rules
and Regulations and the Trust Indenture Act and such as may be required
under state securities laws and under Rule 424 under the Act.
(l) The execution, delivery and performance of the
Indenture and this Agreement do not, and the completion, execution and
issuance of each particular Security in accordance with the Indenture,
the issuance of the Guarantees by the Guarantors, the sale by the
Issuer of such Security in accordance with this Agreement and
compliance with the terms and provisions thereof will not, result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Issuer or the Guarantors or any subsidiary
of the Issuer or the Guarantors or any of their properties, or any
agreement or instrument to which the Issuer or the Guarantors or any
such subsidiary is a party or by which the Issuer or the Guarantors or
any such subsidiary is bound or to which any of the properties of the
Issuer or the Guarantors or any such subsidiary is subject, or the
charter or by-laws of the Issuer or the Guarantors or any such
subsidiary, and the Issuer has full power and authority to authorize,
issue and sell the Securities as contemplated by this Agreement and
each Guarantor has full power and authority to execute and deliver its
applicable Guarantee.
(m) To the best of its knowledge, the Issuer and its
subsidiaries conduct their respective businesses in compliance with all
applicable laws, orders, rules and regulations of applicable
governmental and regulatory authorities of the jurisdictions in which
they conduct business, including, without limitation, the Americans
with Disabilities Act of 1990 and all applicable local, state and
federal employment, truth-in-advertising, franchising and immigration
laws and regulations, except where the failure to be so in compliance
would not have a Material Adverse Effect.
(n) This Agreement (including any agreement with respect
to the offering and sale of particular Securities as contemplated by
Section 3) has been duly authorized, executed and delivered by the
Issuer and each of the Guarantors.
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(o) Except as disclosed in the Prospectus, the Issuer and
its subsidiaries have good and marketable title to all real properties
and all other properties and assets owned by them, in each case free
from liens, other than mortgage indebtedness incurred in the ordinary
course, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof
by them; and except as disclosed in the Prospectus, the Issuer and its
subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by them.
(p) The Issuer or its subsidiaries have acquired title
insurance with respect to each of the properties described in the
Prospectus as being owned by the Issuer or its subsidiaries, except, in
each case, where the failure to maintain such title insurance is not
reasonably likely to have a Material Adverse Effect.
(q) The Issuer and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Issuer or any of its subsidiaries,
would individually or in the aggregate have a Material Averse Effect.
(r) Each of the Issuer and its subsidiaries maintains
property and casualty insurance with respect to each of the properties
owned by them in an amount and on such items as is reasonable and
customary for businesses of this type.
(s) No labor dispute with the employees of the Issuer or
any subsidiary exists or, to the knowledge of the Issuer, is imminent
that would have a Material Adverse Effect.
(t) The Issuer and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"INTELLECTUAL PROPERTY rights") necessary to conduct the business now
operated by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Issuer or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(u) Except as disclosed in the Prospectus, neither the
Issuer nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates
any real property contaminated with any substance that is subject to
any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Issuer is not aware
of any pending investigation which would lead to such a claim.
(v) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Issuer,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Issuer or any of its subsidiaries, would
individually
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or in the aggregate have a Material Adverse Effect or would materially
and adversely affect the ability of the Issuer to perform its
obligations under the Indenture or this Agreement, or which are
otherwise material in the context of the sale of the Securities; and no
such actions, suits or proceedings are threatened or, to the Issuer's
knowledge, contemplated.
(w) The financial statements included in the Registration
Statement and Prospectus present fairly the financial position of the
Issuer, IRT Partners and the Issuer's consolidated subsidiaries as of
the dates shown and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in
conformity with generally accepted accounting principles in the United
States applied on a consistent basis.
(x) Except as disclosed in the Prospectus, since the date
of the latest audited financial statements included in the Prospectus,
(i) there has been no material adverse change, nor any development or
event that would involve a prospective material adverse change, in the
condition (financial or other), business, earnings, properties or
results of operations of the Issuer and its subsidiaries taken as a
whole, and, except as disclosed in or contemplated by the Prospectus,
there has been no dividend or distribution of any kind declared, paid
or made by the Issuer on any class of its capital stock (except in the
ordinary course of business consistent with past practice) and (ii)
neither the Issuer nor any of its subsidiaries has sustained any
material loss or interference with its assets, businesses or properties
(whether owned or leased) from fire, explosion, earthquake, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action, order
or decree that could have a Material Adverse Effect.
(y) The Issuer and the Significant Subsidiaries are not,
and, after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof as described in the Prospectus,
will not be, an "investment company," as defined in the Investment
Company Act of 1940.
(z) Immediately after any sale of Securities by the
Issuer hereunder or under any Terms Agreement, the aggregate amount of
Securities which shall have been issued and sold by the Issuer
hereunder or under any Terms Agreement and of any debt securities of
the Issuer (other than such Securities) that shall have been issued and
sold pursuant to the Registration Statement will not exceed the amount
of debt securities registered under the Registration Statement.
(aa) The Issuer was and is organized to qualify as a "real
estate investment trust" under the Internal Revenue Code of 1986, as
amended (the "CODE"); the Issuer has qualified as a "real estate
investment trust" under the Code for each of its taxable years ended
through December 31, 2000 and will continue to qualify as a "real
estate investment trust" under the Code after consummation of the
transactions contemplated by the Prospectus; and the Issuer's present
and contemplated operations, assets and income will enable the Issuer
to meet the requirements for qualification as a "real estate investment
trust" under the Code. The United States Federal Income Tax Returns of
the Issuer have been closed through the fiscal year of the Issuer ended
December 31, 1996; and the Issuer has filed United Stated Federal
Income Tax Returns for each of its fiscal years through and including
the fiscal year ended December 31, 1999 but has not yet filed a United
States Federal Income Tax Return for the fiscal year ended December 31,
2000.
(bb) Each entity listed on Annex I, other than IRTCCII,
either qualifies as a partnership for federal, state and local income
tax purposes or as a "qualified REIT subsidiary" within the
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meaning of Section 856(i) of the Code or qualifies to be disregarded as
an entity separate from the Issuer or one of its subsidiaries for
federal, state and local income tax purposes.
3. Appointment as Agents; Agreement of Agents; Solicitations.
(a) (i) Subject to the terms and conditions stated herein, the
Issuer hereby appoints each of the Agents as the agents of the Issuer for the
purpose of soliciting or receiving offers to purchase the Securities to be
issued by the Issuer during any Marketing Time. For purposes of this Agreement,
"MARKETING TIME" shall mean any time when no suspension of solicitation of
offers to purchase Securities pursuant to Section 3(c) or Section 4(c) shall be
in effect or any time when either any Agent shall purchase any Securities from
the Issuer with the intention of reselling them or the Issuer has accepted an
offer to purchase Securities but the related settlement has not occurred.
(ii) So long as this Agreement shall remain in effect with
respect to any Agent, the Issuer shall not, without the consent of any such
Agent, solicit or accept offers to purchase Securities otherwise than to or
through one of the Agents; provided, however, that, subject to all of the terms
and conditions of this Agreement, the foregoing shall not be construed to
prevent the Issuer from selling at any time any Registered Securities in a firm
commitment underwriting pursuant to an underwriting agreement that does not
provide for a continuous offering of such Registered Securities; and provided,
further, that the Issuer reserves the right from time to time (i) to sell
Securities directly to an investor, and (ii) to accept a specific offer to
purchase Securities solicited by a dealer other than the Agents (each an "OTHER
DEALER"), without obtaining the prior consent of any of the Agents, provided
that (x) the Issuer shall give each of the Agents notice of its decision to
accept such an offer to purchase Securities in advance of such acceptance and
(y) any Other Dealer shall agree to be bound by and subject to the terms and
conditions of this Agreement binding on the Agents (including the commission
schedule set forth on Exhibit B).
(b) (i) On the basis of the representations, warranties and
agreements contained herein, but subject to the terms and conditions herein set
forth, each Agent agrees, as an agent of the Issuer, to use reasonable efforts
when requested by the Issuer to solicit offers to purchase the Securities upon
the terms and conditions set forth in the Prospectus, as from time to time
amended or supplemented.
(ii) No Agent shall have any obligation to purchase
Securities from the Issuer; provided, however, that one or more Agents (each, a
"PRESENTING AGENT") may agree from time to time to purchase Securities as
principal for resale to investors and other purchasers selected by such
Presenting Agents. Unless otherwise expressly agreed by the Issuer and the
Presenting Agents as contemplated by clause (v) below, each offer to sell
Securities transmitted by an Agent and accepted by the Issuer shall constitute
acceptance of an offer to sell such Securities to the Presenting Agents for
resale. In addition, if so specified in a Terms Agreement (as defined in clause
(iii) below) executed by the Issuer and one or more Presenting Agents, such
Presenting Agents shall act as representative or representatives of the several
underwriters named in such Terms Agreement for resale of the Securities
specified in such Terms Agreement upon the terms and subject to the conditions
specified in such Terms Agreement, this Agreement and in the Prospectus, as
supplemented by the applicable Pricing Supplement. It is understood that the
Agents and any underwriters for which they may act as representative propose
that they will offer any Securities which they agree to purchase as principal
for sale as set forth in the Prospectus, as supplemented by the applicable
Pricing Supplement, only in such jurisdictions where such Securities may be
lawfully offered and sold.
(iii) Upon acceptance by the Issuer of an offer by one or
more Presenting Agents to purchase Securities as principal, unless the Issuer
and the Presenting Agent or Agents execute a Terms
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Agreement substantially in the form of Exhibit A hereto (a "TERMS AGREEMENT"),
any written confirmation or communication transmitted by the Presenting Agent or
Agents to the Issuer or, in the absence of a Terms Agreement or such other
written confirmation or communication, the oral agreement with respect to the
terms of the Securities and of their offer and sale evidenced by the offer
communicated by the Presenting Agent or Agents and accepted by the Issuer, in
each case together with the provisions of this Agreement, shall constitute an
agreement between the Presenting Agent or Agents and the Issuer for the sale and
purchase of such Securities (whether or not any Terms Agreement or other written
confirmation or communication shall have been executed by the Issuer or the
Presenting Agent or Agents). Each purchase of Securities by an Agent shall,
unless otherwise agreed, be at a discount from the principal amount of each such
Security equivalent to the applicable commission set forth in Exhibit B hereto.
(iv) Each Agent is authorized to engage the services of
any other brokers or dealers in connection with the offer or sale of Securities
purchased by such Agent as principal for resale to others and may reallow any
portion of the discount received from the Issuer to such brokers or dealers.
(v) If expressly agreed by an Agent and the Issuer, such
Agent will solicit offers to purchase Securities from the Issuer through such
Agent, acting as agent, in accordance with the provisions of this Agreement. In
such event, such Agent shall communicate to the Issuer, orally or in writing,
each reasonable offer to purchase Securities received by it as agent; and the
Issuer shall have the sole right to accept offers to purchase the Securities and
may reject any such offer, in whole or in part. Each Agent shall have the right,
in its discretion reasonably exercised, without notice to the Issuer, to reject
any offer to purchase Securities received by it as such agent, in whole or in
part, and any such rejection shall not be deemed a breach of its agreement
contained herein. At the time of delivery of, and payment for, any Securities
sold by the Issuer as a result of a solicitation made by, or offer to purchase
received by, an Agent, acting on an agency basis, the Issuer agrees to pay such
Agent a commission in accordance with the schedule set forth in Exhibit B
hereto.
(vi) No Agent shall have any responsibility for
maintaining records with respect to the aggregate principal amount of Securities
available for sale by the Issuer, or otherwise monitoring the availability of
Securities for sale under the Registration Statement.
(vii) No Security which the Issuer has agreed to sell
pursuant to this Agreement shall be deemed to have been purchased and paid for,
or sold by the Issuer, until such Security shall have been delivered to the
purchaser thereof against payment by such purchaser.
(c) Upon receipt of notice from the Issuer as
contemplated by Section 4(c) hereof, each Agent shall suspend its solicitation
of offers to purchase Securities until such time as the Issuer shall have
furnished it with an amendment or supplement to the Registration Statement or
the Prospectus, as the case may be, contemplated by Section 4(c) and shall have
advised such Agent that such solicitation may be resumed.
The Issuer reserves the right, in its sole discretion, to
suspend solicitation of offers to purchase the Securities commencing at any time
for any period of time or permanently. Upon receipt of at least one Business
Day's prior notice from the Issuer, the Agents will forthwith suspend
solicitation of offers to purchase Securities from the Issuer until such time as
the Issuer has advised the Agents that such solicitation may be resumed. For the
purpose of the foregoing sentence, "BUSINESS DAY" shall mean any day that is not
a Saturday or Sunday, and that in The City of New York is not a day on which
banking institutions generally are authorized or obligated by law or executive
order to close.
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(d) Administrative procedures respecting the sale of
Securities (the "PROCEDURES") shall be agreed upon from time to time by the
Agents and the Issuer. The initial Procedures, which are set forth in Exhibit C
hereto, shall remain in effect until changed by agreement among the Issuer and
the Agents. Each Agent and the Issuer agree to perform the respective duties and
obligations specifically provided to be performed by each of them herein and in
the Procedures. The Issuer will furnish to the Trustee a copy of the Procedures
as from time to time in effect.
(e) The documents required to be delivered by Section 5
hereof shall be delivered at the offices of Milbank, Tweed, Xxxxxx & XxXxxx LLP,
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, not later than 10:00
A.M., New York City time, on the date of this Agreement or at such other place
or time as may be mutually agreed by the Issuer and the Agents, which in no
event shall be later than the time at which the Agents commence solicitation of
purchases of Securities hereunder, such time and date being herein called the
"CLOSING DATE". For purposes of Rule 15c6-1 under the Securities Exchange Act of
1934, the settlement date (if later than the otherwise applicable settlement
date) shall be the date for payment of funds and delivery of securities for all
the Securities sold pursuant to an offering of Securities having identical terms
(including the issue date) and terms of sale (whether or not set forth in a
single Terms Agreement).
4. Certain Agreements of the Issuer and the Guarantors. The
Issuer and each Guarantor agrees with the Agents that it will furnish to
Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for the Agents, one signed copy of
the Registration Statement, including all exhibits, in the form it became
effective and of all amendments thereto and that, in connection with each
offering of Securities,
(a) The Issuer will prepare a Pricing Supplement with
respect to any Securities to be offered and sold to or through one or
more Agents pursuant to this Agreement and, after approval of such
Pricing Supplement by such Agent or Agents, will file such Pricing
Supplement with the Commission pursuant to and in accordance with Rule
424(b) under the Act.
(b) The Issuer will advise each Agent promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Agents a reasonable opportunity to
comment on any such proposed amendment or supplement (other than any
Pricing Supplement that relates to Securities not purchased through or
by such Agent), and if the Issuer effects any amendment or
supplementation of the Registration Statement or the Prospectus to
which an Agent objects, such Agent shall be relieved of its obligations
under Section 3(b) to solicit offers to purchase Securities until such
time as the Issuer shall have filed such further amendments or
supplements such that such Agent is reasonably satisfied with the
Registration Statement and the Prospectus, as then amended or
supplemented; and the Issuer will also advise each Agent promptly of
the filing and effectiveness of any such amendment or supplement and of
the institution by the Commission of any stop order proceedings in
respect of the Registration Statement or of any part thereof and will
use its best efforts to prevent the issuance of any such stop order and
to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus, as then amended or supplemented,
would include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or if it is necessary at any
such time to amend the Prospectus to comply with the Act, the Issuer
will promptly notify each Agent by
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telephone (with confirmation in writing) to suspend solicitation of
offers to purchase such Securities and to cease making offers or sales
of Securities which a Agent may then own (as a result of purchases from
the Issuer as principal with the intention of reselling the Securities)
as principal; and if the Issuer shall decide to amend or supplement the
Registration Statement or the Prospectus, it will promptly advise each
Agent by telephone (with confirmation in writing) and, subject to the
provisions of subsection (a) of this Section, will promptly prepare and
file with the Commission an amendment or supplement which will correct
such statement or omission or an amendment which will effect such
compliance. Notwithstanding the foregoing, if, at the time any such
event occurs or it becomes necessary to amend the Prospectus to comply
with the Act, any Agent shall have purchased from the Issuer and owns
any of such Securities with the intention of reselling them, or the
Issuer has accepted an offer to purchase such Securities but the
related settlement has not occurred, the Issuer, subject to the
provisions of subsection (a) of this Section, will promptly prepare and
file with the Commission an amendment or supplement which will correct
such statement or omission or an amendment which will effect such
compliance. Neither the Agents' consent to, nor their delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5.
(d) The Issuer and the Guarantors will file promptly all
documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act. In addition, at the same
time the Issuer makes any announcement to the general public concerning
earnings or concerning any other event which is required to be
described, or which the Issuer proposes to describe, in a document
filed pursuant to the Exchange Act, the Issuer will furnish the
information contained or to be contained in such announcement to each
Agent, confirmed in writing and, subject to the provisions of
subsections (a) and (b) of this Section, will, if the Issuer deems it
necessary or appropriate, cause the Prospectus to be amended or
supplemented to reflect the information contained in such announcement.
The Issuer also will furnish each Agent with copies of all press
releases or announcements to the general public.
(e) The Issuer will immediately notify each Agent of any
downgrading in the rating of any debt securities of the Issuer or any
proposal to downgrade the rating of any debt securities of the Issuer
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or
review its rating of any debt securities of the Issuer (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading of such rating), as soon as the
Issuer learns of such downgrading, proposal to downgrade or public
announcement.
(f) As soon as practicable, but not later than the 90th
day after the Issuer's fiscal year end, after the date of each
acceptance by the Issuer of an offer to purchase Securities hereunder,
the Issuer will make generally available to its security holders an
earnings statement covering a period of at least 12 months beginning
after the later of (i) the effective date of the registration statement
relating to the Registered Securities, (ii) the effective date of the
most recent post-effective amendment to the Registration Statement to
become effective prior to the date of such acceptance and (iii) the
date of the Issuer's most recent Annual Report on Form 10-K filed with
the Commission prior to the date of such acceptance, which will satisfy
the provisions of Section 11(a) of the Act.
(g) The Issuer will furnish to each Agent copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the
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Prospectus and all amendments and supplements to such documents
(including any Pricing Supplement), in each case as soon as available
and in such quantities as are reasonably requested.
(h) The Issuer will arrange for the qualification of the
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Agents designate
and will continue such qualifications in effect so long as required by
the Agents; provided that in the case of any foreign jurisdiction, the
Agents obtain the Issuer's prior consent.
(i) So long as any Securities are outstanding, the Issuer
will furnish to the Agents, (i) as soon as practicable after the end of
each fiscal year, but as soon as practicable following the date such
report is filed with the SEC, a copy of its annual report to
stockholders for such year, (ii) as soon as available, a copy of each
report or definitive proxy statement of the Issuer filed with the
Commission under the Exchange Act or mailed to stockholders, and (iii)
from time to time, such other information concerning the Issuer as the
Agents may reasonably request.
(j) The Issuer and the Guarantors, jointly and severally,
will pay, or reimburse each Agent for, all expenses incident to the
performance of its obligations under this Agreement and will reimburse
each Agent for any reasonable expenses (including reasonable fees and
disbursements of counsel) incurred by it in connection with
qualification of the Securities for sale and determination of their
eligibility for investment under the laws of such jurisdictions as such
Agent may designate and the preparation, printing and distribution of
memoranda relating thereto, for any fees charged by investment rating
agencies for the rating of the Securities, for any filing fee incident
to, and the reasonable fees and disbursements of counsel to the Agents,
if any, in connection with, review by the National Association of
Securities Dealers, Inc. relating to the Securities, for expenses
incurred by each Agent in distributing the Prospectus and all
supplements thereto (including any Pricing Supplement), any preliminary
prospectuses and any preliminary prospectus supplements to such Agent,
for any travel expenses of the Issuer's officers and employees, for
costs incurred by each Agent in advertising any offering of Securities
with the Issuer's prior consent and for each Agent's reasonable
expenses (including the reasonable fees and disbursements of counsel to
the Agents) incurred in connection with the establishment or
maintenance of the program contemplated by this Agreement or otherwise
in connection with the activities of the Agents under this Agreement.
(k) Each of the Issuer and IRT Partners will use all
reasonable efforts to maintain its qualification as a "real estate
investment trust" under the Code for the taxable year in which sales of
Securities are to occur.
(l) Between the date on which any Agent agrees to
purchase Securities from the Issuer as principal for resale and the
date of delivery of such Securities, neither the Issuer nor the
Guarantors will offer or sell, or enter into any agreement to sell,
pledge, or otherwise dispose of, directly or indirectly, or file with
the Commission a registration statement under the Act relating to any
of its debt securities (other than such Securities) in the United
States, other than borrowings under the Issuer's revolving credit
agreements and lines of credit, the private placement of securities,
issuances of its commercial paper and the incurrence of mortgage
indebtedness in the ordinary course, or publicly disclose the intention
to make any such offer, sale, pledge or disposition or filing.
5. Conditions of Obligations. The obligations of each Agent,
as agent of the Issuer, under this Agreement at any time to solicit offers to
purchase the Securities and to purchase Securities from the
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Issuer as principal is subject to the accuracy, on the date hereof, on each
Representation Date and on the date of each such solicitation, of the
representations and warranties of the Issuer and the Guarantors herein, to the
accuracy, on each such date, of the statements of the Issuer's and the
Guarantors' officers made pursuant to the provisions hereof, to the performance,
on or prior to each such date, by the Issuer and each of the Guarantors of their
respective obligations hereunder, and to each of the following additional
conditions precedent:
(a) The Prospectus, as amended or supplemented as of any
Representation Date or date of such solicitation, as the case may be,
shall have been filed with the Commission in accordance with the Rules
and Regulations and no stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Issuer or any Agent, shall be contemplated by the
Commission.
(b) Neither the Registration Statement nor the
Prospectus, as amended or supplemented as of any Representation Date or
date of such solicitation, as the case may be, shall contain any untrue
statement of fact which, in the opinion of any Agent, is material or
omits to state a fact which, in the opinion of any Agent, is material
and is required to be stated therein or is necessary to make the
statements therein not misleading.
(c) There shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Issuer or its subsidiaries which, in the judgment of the Agents, is
material and adverse and makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and payment for
the Securities; (ii) any downgrading in the rating of any debt
securities of the Issuer by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Issuer
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum
prices for trading of securities generally on such exchange, or any
suspension of trading of any securities of the Issuer on any exchange
or in the over-the-counter market; (iv) any banking moratorium declared
by U.S. Federal or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is involved,
any declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of the Agents,
the effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
solicitations of offers to purchase, or sales of, Securities.
(d) With respect to any Security denominated in a
currency other than the U.S. dollar, more than one currency or a
composite currency or any Security the principal or interest of which
is indexed to such currency, currencies or composite currency, there
shall not have occurred a suspension or material limitation in foreign
exchange trading in such currency, currencies or composite currency by
a major international bank, a general moratorium on commercial banking
activities in the country or countries issuing such currency,
currencies or composite currency, the outbreak or escalation of
hostilities involving, the occurrence of any material adverse change in
the existing financial, political or economic conditions of, or the
declaration of war or a national emergency by, the country or countries
issuing such currency, currencies or composite currency or
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the imposition or proposal of exchange controls by any governmental
authority in the country or countries issuing such currency, currencies
or composite currency;
(e) At the Closing Date and, if specified in a Terms
Agreement, if any, at the time of delivery of the Securities described
in such Terms Agreement, the Agents or the Agent purchasing such
Securities (each a "PURCHASING AGENT"), as the case may be, shall have
received an opinion, dated the Closing Date, or such date of delivery,
as the case may be, of Xxxxxx & Bird LLP, counsel for the Issuer and
the Guarantors, to the effect set forth in paragraphs (ii) through
(xii) below, and of in-house counsel to the Issuer and the Guarantors,
to the effect set forth in paragraphs (i) and (viii) below:
(i) Each of the Issuer and its subsidiaries has
been duly incorporated or established, as the case may be, and
is validly existing as a corporation, limited partnership or
limited liability company, as the case may be, in good
standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and
authority to own its properties and conduct its business as
described in the Prospectus; and the Issuer and each of its
subsidiaries is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure
to be so qualified would not have a Material Adverse Effect;
and IRT Partners has been duly formed and is validly existing
as a limited partnership and in good standing under the laws
of the State of Georgia, with full power and authority to own
its properties and conduct its business as described in the
Prospectus.
(ii) The Issuer's authorized capitalization is as
set forth in the Registration Statement; and the Securities
and the Guarantees conform in all material respects to the
description thereof contained in the Prospectus (subject to
the insertion in the Securities of the maturity dates, the
interest rates and other similar terms thereof which will be
described in supplements to the Prospectus as contemplated by
Section 2(a) of this Agreement).
(iii) The Indenture has been duly authorized,
executed and delivered by the Issuer and each of the
Guarantors and has been duly qualified under the Trust
Indenture Act, constitutes a legal, valid and binding
instrument, enforceable against the Issuer in accordance with
its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect), and conforms in all material respects to
the description thereof contained in the Prospectus.
(iv) Any series of Securities established on or
prior to the date of such opinion has been duly authorized and
established in conformity with the Indenture, and, when the
terms of a particular Security and of its issuance and sale
have been duly authorized and established by all necessary
corporate action in conformity with the Indenture, and such
Security has been duly completed, executed, authenticated and
issued in accordance with the Indenture and the Procedures and
delivered against payment as contemplated by this Agreement,
such Security will constitute legal, valid and binding
obligations of the Issuer entitled to the benefits of the
Indenture (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect) and will conform in all material respects
to the description thereof contained in the Prospectus.
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(v) Each of the Guarantees has been duly authorized,
executed and delivered by the applicable Guarantor, constitutes a
legal, valid and binding instrument, enforceable against such Guarantor
in accordance with its terms (subject, as to enforcement of remedies,
to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to time in
effect) and conforms in all material respects to the description
thereof contained in the Prospectus.
(vi) The Registration Statement has become effective under
the Act, any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) under the Act has been or will be made
in the manner and within the time period required by Rule 424(b); to
the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has
been issued, no proceedings for that purpose have been instituted or
threatened, and the Registration Statement and Prospectus (except that
no opinion need be expressed as to the financial statements and other
financial and statistical information contained therein or the
Trustee's Statement of Eligibility on Form T-1) comply as to form in
all material respects with the applicable requirements of the Act, the
Securities Exchange Act of 1934, the Trust Indenture Act and the Rules
and Regulations (assuming that the Company will timely file a Current
Report on SEC Form 8-K containing the Agency Agreement, the forms of
Securities, and the legal opinions required with respect to the
Securities by SEC Regulation S-K, Item 601(5) and (8)); and such
counsel has no reason to believe that the Registration Statement as of
its effective date and as of the Closing Date contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus includes any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading (except that no opinion need be expressed as to the
financial statements and other financial and statistical information
contained therein or as to the Trustee's Statement of Eligibility on
Form T-1).
(vii) All approvals required to be obtained from
governmental or regulatory authorities in connection with the issuance
and sale of the Securities by the Issuer and the issuance of the
Guarantees by the Guarantors have been obtained and are in full force
in effect, except such as have been obtained and made under the Act,
the Rules and Regulations and the Trust Indenture Act and such as may
be required under state securities laws and Rule 424 under the Act (it
being understood that such counsel may assume with respect to each
particular Security that the inclusion of any alternative or additional
terms in such Security that are not currently specified in the forms of
Securities examined by such counsel would not require the Issuer or any
Guarantor to obtain any regulatory consent, authorization or approval
or make any regulatory filing in order for the Issuer to issue, sell
and deliver such Security and the Guarantors to issue and deliver the
Guarantees thereon).
(viii) Neither the execution and delivery of the Indenture,
the execution and delivery of the Guarantees, the issue and sale of the
Securities, nor the consummation of any other of the transactions
herein contemplated nor the fulfillment of, or compliance with, the
terms of this Agreement will conflict with, result in a breach or
violation of, or constitute a default under, any law or the charter or
bylaws of the Issuer or any Guarantor or the terms of any or other
agreement or instrument identified as material by the Issuer to such
counsel (it being understood that such agreements and instruments are
as set forth as Exhibits to the Issuer's most recent Annual Report on
Form 10-K for the year ended December 31, 2000) and to which the
Issuer, such Guarantor or any of their respective subsidiaries is a
party or bound,
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or any judgment, order, decree or regulation known to such counsel to
be applicable to the Issuer, such Guarantor or such subsidiaries of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Issuer, such Guarantor or such
subsidiaries.
(ix) This Agreement has been duly authorized, executed and
delivered by the Issuer and each Guarantor.
(x) Neither the Issuer nor the Significant Subsidiaries
are subject to registration under the Investment Company Act of 1940.
(xi) For all applicable tax years as to which the Issuer's
tax returns are subject to audit and the Issuer is subject to
assessment for taxes reportable therein, the Issuer has been organized
and operated in conformity with the requirements for qualification and
taxation as a "real estate investment trust" under the Code; and the
Issuer's method of operation will permit it to continue to meet the
requirements for taxation as a "real estate investment trust" under the
Code.
(xii) Each subsidiary of the Issuer listed on Annex I,
other than IRTCCII, either (i) qualifies as a partnership for federal
and Georgia state income tax purposes or as a "qualified REIT
subsidiary" within the meaning of Section 856(i) of the Code or (ii)
qualifies to be disregarded as an entity separate from the Issuer or
one of its subsidiaries for federal and Georgia state income tax
purposes.
provided, however, that, in the case of each such opinion delivered
pursuant to a Terms Agreement, (x) the statements contained in such
opinion relating to the Registration Statement or the Prospectus shall
relate to the Registration Statement or the Prospectus, as the case may
be, as amended or supplemented as of the date of the Issuer's acceptance
of the offer to purchase such Securities and as of the time of delivery
of such Securities; (y) such opinion shall relate to the Securities
being delivered on the date of such opinion and not to other Securities
as well; and (z) in lieu of the opinion described in clause (iv), such
opinion shall state that the Securities being delivered on the date of
such opinion, when delivered against payment as contemplated by this
Agreement, such Security will constitute legal, valid and binding
obligations of the Issuer, enforceable in accordance with its terms,
subject only to the exceptions set forth in clause (iv) as to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect, and
will conform in all material respects to the description thereof
contained in the Prospectus as amended or supplemented at such date of
delivery.
(f) At the Closing Date and, if specified in a Terms
Agreement, if any, at the time of delivery of the Securities described
in such Terms Agreement, the Agents or the Presenting Agent, as the
case may be, shall have received a certificate, dated the Closing Date
or such date of delivery, as the case may be, of the President or any
Vice President and a principal financial or accounting officer of the
Issuer and each Guarantor in which such officers, to the best of their
knowledge after reason able investigation, shall state that the
representations and warranties of the Issuer and such Guarantor in this
Agreement are true and correct, that the Issuer and such Guarantor, as
the case may be, has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date or such date of delivery, as the case may be,
that, to the knowledge of such officer, no stop order suspending the
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effectiveness of the Registration Statement or of any part thereof has
been issued and no proceedings for that purpose have been instituted or
are contemplated by the Commission, and that subsequent to the date of
the most recent financial statements in the Prospectus, there has been
no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
otherwise), business, properties or results of operations of the Issuer
and its subsidiaries, taken as a whole, except as set forth in or
contemplated by the Prospectus or as described in such certificate. In
the case of each such certificate delivered pursuant to a Terms
Agreement, the statements contained in such certificate relating to the
Registration Statement or the Prospectus shall relate to the
Registration Statement or the Prospectus, as the case may be, as
amended or supplemented as of the date of the Issuer's acceptance of
the offer to purchase such Securities and as of the time of delivery of
such Securities.
(g) At the Closing Date and, if specified in a Terms
Agreement, if any, at the time of delivery of the Securities described
in such Terms Agreement, the Agents or the Purchasing Agent or Agents,
as the case may be, shall have received a letter, dated the Closing
Date or such date of delivery, as the case may be, of Xxxxxx Xxxxxxxx
LLP, confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) in their opinion, the financial statements
and schedules and summary of earnings, if any, examined by
them and included or incorporated by reference in the
Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified
by the American Institute of Certified Public Accountants for
a review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on any unaudited financial statements included in
the Registration Statement;
(iii) on the basis of the review, if any, referred
to in clause (ii) above, a reading of the latest available
interim financial statements of the Issuer and its
subsidiaries, IRT Partners and IRTCCII, inquiries of officials
of the Issuer, IRT Partners and IRTCCII who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited financial statements,
if any, and any summary of earnings included or
incorporated by reference in the Registration
Statement and the Prospectus do not comply as to form
in all material respects with the applicable
accounting requirements of the Act and the related
published Rules and Regulations or any material
modifications should be made to such unaudited
financial statements and summary of earnings for them
to be in conformity with generally accepted
accounting principles;
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock (other than
in connection with the any dividend reinvestment or
benefit plans of the Issuer) or any increase in
long-term debt of the Issuer and its consolidated
subsidiaries, IRT
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Partners, IRTCCII or, at the date of the latest
available balance sheet read by such accountants,
there was any decrease in consolidated assets or
stockholders' equity, as compared with amounts shown
on the latest balance sheet included or incorporated
by reference in the Prospectus; or
(C) for the period from the closing
date of the latest available income statement
included or incorporated by reference in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year in total
revenues or in total or per-share amounts of net
income of the Issuer and its consolidated
subsidiaries, IRT Partners or IRTCCII;
except in all cases set forth in clauses (B) and (C) above, for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(iv) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Issuer and its subsidiaries, IRT Partners and IRTCCII)
incorporated in the Prospectus, including certain of the
information included or incorporated in the Issuer's Annual
Report on Form 10-K, incorporated in the Prospectus are
derived from the general accounting records of the Issuer and
its subsidiaries, IRT Partners and IRTCCII subject to the
internal controls of the Issuer's, IRT Partners' and IRTCCII's
accounting systems or are derived directly from such records
by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for purposes of this subsection.
In the case of each such letter delivered pursuant to a Terms
Agreement, the statements contained in such letter relating to the
Registration Statement or the Prospectus shall relate to the
Registration Statement or the Prospectus, as the case may be, as
amended or supplemented as of the date of the Issuer's acceptance of
the offer to purchase such Securities and as of the time of delivery of
such Securities.
(h) At the Closing Date and, if specified in a Terms
Agreement, if any, at the time of delivery of the Securities described
in such Terms Agreement, the Agents or the Purchasing Agent, as the
case may be, shall have received from Milbank, Tweed, Xxxxxx & XxXxxx
LLP, counsel for the Agents, such opinion or opinions, dated the
Closing Date or such date of delivery, as the case may be, with respect
to the incorporation of the Issuer, the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as the
Agents or the Purchasing Agent, as the case may be, may require, and
the Issuer shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters. In
rendering such opinion or opinions, Milbank, Tweed, Xxxxxx & XxXxxx LLP
may rely as to the
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incorporation of the Issuer and all other matters governed by Georgia
law upon the opinions of Xxxxxx & Bird LLP and in-house counsel to the
Issuer and the Guarantors referred to above.
(i) The Issuer shall have furnished to the Agents or
their counsel such further certificates and documents as the Agents or
such counsel reasonably request.
The Issuer will furnish the Agents with such conformed copies
of such opinions, certificates, letters and documents as they reasonably
request.
6. Additional Covenants of the Issuer and the
Guarantors. The Issuer and each of the Guarantors agree that:
(a) Each acceptance by the Issuer of an offer for the
purchase of Securities shall be deemed to be an affirmation by the
Issuer and each of the Guarantors that its representations and
warranties contained in this Agreement are true and correct at the time
of such acceptance and a covenant that such representations and
warranties will be true and correct at the time of delivery to the
purchaser of the Securities as though made at and as of each such time,
it being understood that such representations and warranties shall
relate to the Registration Statement and the Prospectus as amended or
supplemented at each such time. Each such acceptance by the Issuer of
an offer to purchase Securities shall be deemed to constitute an
additional representation, warranty and agreement by the Issuer that,
as of the date of delivery of such Securities to the purchaser thereof,
after giving effect to the issuance of such Securities, of any other
Securities to be issued on or prior to such delivery date and of any
other Registered Securities to be issued and sold by the Issuer on or
prior to such delivery date, the aggregate amount of Registered
Securities (including any Securities) which have been issued and sold
by the Issuer will not exceed the amount of Registered Securities
registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than (i) by a
Pricing Supplement or (ii) by an amendment or supplement resulting from
the filing with the SEC of a Current report on Form 8-K, unless
requested by the Agents), the Issuer and each of the Guarantors shall,
(A) concurrently with such amendment or supplement, if such amendment
or supplement shall occur at a Marketing Time, or (B) immediately at
the next Marketing Time if such amendment or supplement shall not occur
at a Marketing Time, furnish the Agents with a certificate, dated the
date of delivery thereof, of the President or any Vice President and a
principal financial or accounting officer of the Issuer, in form
satisfactory to the Agents, to the effect that the statements contained
in the certificate covering the matters set forth in Section 5(f)
hereof which was last furnished to the Agents pursuant to this Section
6(b) are true and correct at the time of such amendment or supplement,
as though made at and as of such time or, in lieu of such certificate,
a certificate of the same tenor as the certificate referred to in
Section 5(f); provided, however, that any certificate furnished under
this Section 6(b) shall relate to the Registration Statement and the
Prospectus as amended or supplemented at the time of delivery of such
certificate and, in the case of the matters set forth in clause (ii) of
Section 5(f), to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section
6(b), the Issuer and each of the Guarantors shall, (A) concurrently if
such Representation Date shall occur at a Marketing Time, or (B)
immediately at the next Marketing Time if such Representation Date
shall not occur at a Marketing Time, furnish the Agents with a written
opinion or opinions, dated the date of such Representation Date, of
counsel for the Issuer and the Guarantors, in form satisfactory to the
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Agents, to the effect set forth in Section 5(e) hereof; provided,
however, that to the extent appropriate, such opinion or opinions may
reconfirm matters set forth in a prior opinion delivered at the Closing
Date or under this Section 6(c); provided further, however, that any
opinion or opinions furnished under this Section 6(c) shall relate to
the Registration Statement and the Prospectus as amended or
supplemented at such Representation Date and shall state that the
Securities sold in the relevant Applicable Period (as defined below)
have been duly executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the Issuer
enforceable in accordance with their terms, subject only to the
exceptions set forth in clause (iii) of Section 5(e) hereof as to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and general equity principles, and conform to the
description thereof contained in the Prospectus as amended or
supplemented at the relevant date or dates for the delivery of such
Securities to the purchaser or purchasers thereof. For the purpose of
this Section 6(c), "APPLICABLE PERIOD" shall mean with respect to any
opinion delivered on a Representation Date the period commencing on the
date as of which the most recent prior opinion delivered at the Closing
Date or under this Section 6(c) speaks and ending on such
Representation Date.
(d) At each Representation Date referred to in Section
6(b) on which the Registration Statement or the Prospectus shall be
amended or supplemented to include additional financial information,
the Issuer shall cause Xxxxxx Xxxxxxxx LLP, (A) concurrently if such
Representation Date shall occur at a Marketing Time, or (B) immediately
at the next Marketing Time if such Representation Date shall not occur
at a Marketing Time, to furnish the Agents with a letter, addressed
jointly to the Issuer and the Agents and dated the date of such
Representation Date, in form and substance satisfactory to the Agents,
to the effect set forth in Section 5(g) hereof; provided, however, that
to the extent appropriate such letter may reconfirm matters set forth
in a prior letter delivered at the Closing Date or pursuant to this
Section 6(d); provided further, however, that any letter furnished
under this Section 6(d) shall relate to the Registration Statement and
the Prospectus as amended or supplemented at such Representation Date,
with such changes as may be necessary to reflect changes in the
financial statements and other information derived from the accounting
records of the Issuer.
(e) On each date for the delivery of Securities to the
purchaser thereof, the Issuer and each of the Guarantors shall, if
requested by the Agent or Agents that solicited or received the offer
to purchase any Securities being delivered on such settlement date,
furnish such Agent with a written opinion or opinions, dated the date
of delivery thereof, of counsel for the Issuer, in form satisfactory to
such Agent, to the effect set forth in clauses (i), (ii) and (iii) of
Section 5(e) hereof; provided, however, that any opinion furnished
under this Section 6(e) shall relate to the Prospectus as amended or
supplemented at such delivery date and shall state that the Securities
being sold by the Issuer on such delivery date, when delivered against
payment therefor as contemplated by this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid
and legally binding obligations of the Issuer enforceable in accordance
with their terms, subject only to the exceptions set forth in clause
(iii) of Section 5(e) hereof as to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and general
equity principles, and will conform to the description thereof
contained in the Prospectus as amended or supplemented at such
settlement date and provided, further, that to the extent appropriate
such opinion or opinions may reconfirm matters set forth in a prior
opinion delivered at the Closing Date or under this Section 6(e).
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(f) The Issuer agrees that any obligation of a person who
has agreed to purchase Securities to make payment for and take delivery
of such Securities shall be subject to (i) the accuracy, on the related
settlement date fixed pursuant to the Procedures, of the Issuer's and
IRT Partner's representation and warranty deemed to be made to the
Agents pursuant to the last sentence of subsection (a) of this Section
6, and (ii) the satisfaction, on such settlement date, of each of the
conditions set forth in Sections 5(a), (b) and (c), it being understood
that under no circumstance shall any Agent have any duty or obligation
to exercise the judgment permitted under Section 5(b) or (c) on behalf
of any such person.
(g) The Issuer shall not be required to comply with the
provisions of subsections (b), (c) or (d) of this Section 6 during any
period from the time the Agents shall have suspended solicitation of
purchases of the Securities in their capacity as agents pursuant to a
request from the Issuer to the time the Issuer shall determine that
solicitation of purchases of the Securities should be resumed or shall
subsequently enter into a new Terms Agreement with one or more Agents.
7. Indemnification and Contribution.
(a) The Issuer and each of the Guarantors, jointly and severally, will
indemnify and hold harmless each Agent, its directors and officers and each
person, if any, who controls such Agent within the meaning of Section 15 of the
Act, against any losses, claims, damages or liabilities, joint or several, to
which such Agent may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto (including the Pricing Supplement), or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Agent for any legal or other
expenses reasonably incurred by such Agent in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that neither the Issuer nor the Guarantors will be
liable to any Agent, its directors and officers and each person, if any, who
controls such Agent in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any of such
documents in reliance upon and in conformity with written information furnished
to the Issuer by such Agent specifically for use therein, unless such loss,
claim, damage or liability arises out of the offer or sale of Securities
occurring after the Agent has notified the Issuer in writing that such
information should no longer be used therein. The foregoing indemnification
shall not inure to the benefit of any Agent (or any of its directors or
officers, or any person controlling such Agent) from or through whom the person
asserting any such losses, claims, damages or liabilities purchased the
Securities concerned, to the extent that the Prospectus relating to such
Securities was required to be delivered by such Agent under the Act in
connection with such purchase and was not so delivered at or prior to the
written confirmation of the sale of such Securities to such person, and where
the untrue statement or omission of a material fact contained in the Prospectus
was corrected in an amendment or supplement if the Issuer had previously
furnished copies of the Prospectus as so amended or supplemented (exclusive of
material incorporated by reference in the Registration Statement) to such Agent
in sufficient time for such Agent to deliver the Prospectus as so amended or
supplemented prior to the consummation of such purchase.
(b) Each Agent will severally and not jointly indemnify and hold
harmless the Issuer, its directors and officers and each person, if any, who
controls the Issuer within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities to which the Issuer may become subject,
20
21
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Issuer by such Agent
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Issuer in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred,
unless such loss, claim, damage or liability arises out of the offer or sale of
Securities occurring after an Agent has notified the Issuer in writing that such
information should no longer be used therein.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party or
indemnified party shall, without the prior written consent of the indemnified
party or indemnifying party, as the case may be, effect any settlement of any
pending or threatened action in respect of which any indemnified party or
indemnifying party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party or indemnifying party, as the
case may be, from all liability on any claims that are the subject matter of
such action.
(d) If the indemnification provided for in this Section 7
is unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Issuer on the one hand and any Agent on the other from the offering pursuant
to this Agreement of the Securities which are the subject of the action or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Issuer on the one hand and any Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Issuer on the one hand and any Agents on the other
shall be deemed to be in the same proportions as the total net proceeds from the
offering pursuant to this Agreement of the Securities which are the subject of
the action (before deducting expenses) received by the Issuer bear to the total
discounts and commissions received by such Agent from the offering of such
Securities pursuant to this Agreement. The relative fault shall be determined by
reference to, among
21
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other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Issuer or such Agent and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no Agent
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities which are the subject of the action and
which were distributed to the public through it pursuant to this Agreement or
upon resale of Securities purchased by it from the Issuer exceeds the amount of
any damages which such Agent has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of each Agent in
this subsection (d) to contribute are several, in the same proportion which the
amount of the Securities which are the subject of the action and which were
distributed to the public through such Agent pursuant to this Agreement bears to
the total amount of such Securities distributed to the public through the Agents
pursuant to this Agreement, and not joint.
(e) The obligations of the Issuer under this Section 7
shall be in addition to any liability which the Issuer may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls each Agent within the meaning of the Act; and the obligations of each
Agent under this Section 7 shall be in addition to any liability which each
Agent may otherwise have and shall extend, upon the same terms and conditions,
to each director of the Issuer, to each officer of the Issuer who has signed the
Registration Statement and to each person, if any, who controls the Issuer
within the meaning of the Act.
8. Status of Each Agent. In soliciting offers to
purchase the Securities from the Issuer pursuant to this Agreement and in
assuming its other obligations hereunder (other than any obligation to purchase
Securities pursuant to Section 3 hereof), each Agent is acting individually and
not jointly and is acting solely as agent for the Issuer and not as principal.
In connection with the placement of any Securities by a Agent, acting as agent,
(a) each Agent will make reasonable efforts to assist the Issuer in obtaining
performance by each purchaser whose offer to purchase Securities from the Issuer
has been solicited by such Agent and accepted by the Issuer, but such Agent
shall have no liability to the Issuer in the event any such purchase is not
consummated for any reason; and (b) if the Issuer shall default on its
obligations to deliver Securities to a purchaser whose offer it has accepted,
the Issuer (i) shall hold the Agents harmless against any loss, claim or damage
arising from or as a result of such default by the Issuer, and (ii) in
particular, shall pay to the Agents any commission to which they would be
entitled in connection with such sale.
9. Survival of Certain Representations and Obligations.
The respective indemnities, agreements, representations, warranties and other
statements of the Issuer or its officers and of the Agents set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Agent, the Issuer or any of their respective representatives, officers or
directors or any controlling person and will survive delivery of and payment for
the Securities. If this Agreement is terminated pursuant to Section 10 or for
any other reason or if for any reason the sale of Securities described in a
confirmation or Terms Agreement referred to in Section 3 by the Issuer to an
Agent is not consummated, the Issuer shall remain responsible for the expenses
to be paid or reimbursed by it pursuant to Section 4(j) and the obligations of
the Issuer under
22
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Sections 4(f) and 4(i) and the respective obligations of the Issuer and the
Agents pursuant to Section 7 shall remain in effect. In addition, if any such
termination of this Agreement shall occur either (i) at a time when any Agent
shall own any of the Securities purchased from the Issuer as principal with the
intention of reselling them or (ii) after the Issuer has accepted an offer to
purchase Securities and prior to the related settlement, the obligations of the
Issuer and the Guarantors under the second sentence of Section 4(c), under
Sections 4(a), 4(b), 4(d), 4(e), 4(g), 4(h) and 4(l) and in the case of a
termination occurring as described in (ii) above, under Sections 3(c), 6(a),
6(e) and 6(f) and under the last sentence of Section 8, shall also remain in
effect.
10. Termination. This Agreement may be terminated for any
reason at any time by the Issuer as to any Agent or , in the case of any Agent,
by such Agent insofar as this Agreement relates to such Agent, upon the giving
of one day's written notice of such termination to the other parties hereto;
provided, however, that this Agreement may not be terminated with respect to an
Agent by the giving of such notice following receipt by the Issuer of a
confirmation or Terms Agreement referred to in Section 3 relating to the
purchase of Securities by such Agent and prior to delivery of the Securities
described in such confirmation or Terms Agreement, unless the sale and purchase
of Securities contemplated thereby is rejected by the Issuer in accordance with
Section 3. Any settlement with respect to Securities placed by an Agent on an
agency basis occurring after termination of this Agreement shall be made in
accordance with the Procedures and each Agent agrees, if requested by the
Issuer, to take the steps therein provided to be taken by such Agent in
connection with such settlement.
11. Sales of Securities Denominated in a Currency other
than U.S. Dollars or of Indexed Securities. If at any time the Issuer and the
Agents shall determine to issue and sell Securities denominated in a currency
other than U.S. dollars, which other currency may include a currency unit, or
with respect to which an index is used to determine the amounts of payments of
principal and any premium and interest, the Issuer and any such Agent may
execute and deliver a supplement to this Agreement for the purpose of making any
appropriate additions to and modifications of the terms of this Agreement (and
the Procedures) applicable to such Securities and the offer and sale thereof.
The Agents are authorized to solicit offers to purchase Securities with respect
to which an index is used to determine the amounts of payments of principal and
any premium and interest, and the Issuer shall agree to any sales of such
Securities (whether offered on an agency or principal basis), only in a minimum
aggregate amount of $2,500,000. The Issuer will not issue Securities denominated
in Yen otherwise than in compliance with applicable Japanese laws, regulations
and policies. In particular, the Issuer or its designated agent shall submit
such reports or information as may be required from time to time by applicable
law, regulations and guidelines promulgated by Japanese governmental and
regulatory authorities in the case of the issue and purchase of the Securities
and the Issuer shall ensure that each such Security shall have a minimum
denomination of (Y)1,000,000 and a minimum maturity of one year or such other
minimum denomination and maturity as may be allowed from time to time by
Japanese governmental and regulatory authorities.
12. Notices. Except as otherwise provided herein, all
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to Credit Suisse First Boston Corporation shall be
directed to it at Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Short and Medium Term Finance Department (Facsimile No.: (212)
325-8183); notices to Wachovia Securities, Inc. shall be directed to it at 000
Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxx X. Xxxx (Facsimile
No.: (000) 000-0000) and notices to the Issuer shall be directed to it at 000
Xxxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, Attention: Chief Financial
Officer (Facsimile No.: (000) 000-0000) or in the case of any party hereto, to
such other address or person as such party shall specify to each other party by
a
23
24
notice given in accordance with the provisions of this Section 12. Any such
notice shall take effect at the time of receipt.
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto, their respective successors, the
officers and directors and controlling persons referred to in Section 7 and, to
the extent provided in Section 6(f), any person who has agreed to purchase
Securities from the Issuer, and no other person will have any right or
obligation hereunder.
14. Counterparts. This Agreement and any Terms Agreement
may be executed in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same Agreement.
15. APPLICABLE LAW. THIS AGREEMENT AND ANY TERMS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
The Issuer hereby submits to the non-exclusive jurisdiction of
the Federal and state courts in the Borough of Manhattan in The City of New York
in any suit or proceeding arising out of or relating to this Agreement or any
Terms Agreement or the transactions contemplated hereby or thereby.
If the foregoing correctly sets forth our agreement, please
indicate your acceptance hereof in the space provided for that purpose below.
24
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Very truly yours,
IRT PROPERTY COMPANY
As Issuer
By: /s/
------------------------------------
Name:
Title:
IRT PARTNERS, L.P.
As a Guarantor
By: IRT Property Company
its General Partner
By: /s/
------------------------------------
Name:
Title:
IRT CAPITAL CORPORATION II
As a Guarantor
By: /s/
------------------------------------
Name:
Title:
IRT MANAGEMENT COMPANY
As a Guarantor
By: /s/
------------------------------------
Name:
Title:
IRT ALABAMA, INC.
As a Guarantor
By: /s/
------------------------------------
Name:
Title:
25
26
CONFIRMED AND ACCEPTED, as of the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/
--------------------------------
Name:
Title:
WACHOVIA SECURITIES, INC.
By: /s/
--------------------------------
Name:
Title:
26
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ANNEX I
IRT Property Corporation
Subsidiary Listing for 5% or Greater Entities
Approximate State of Type of
Entity Name Ownership Incorporation Entity
----------- ----------- ------------- -------
IRT Partners L.P. 93% Georgia Partnership
IRT Capital Corporation(1) 1/96% Georgia Corporation
IRT Capital Corporation II(2) 1/96% Georgia Corporation
VW Mall, Inc.(3) 100% Georgia QRS
IRT Alabama, Inc.(3) 100% Alabama QRS
IRT Heritage Walk, LLC(4) 100% Delaware LLC
IRT MacLand Pointe, LLC(4) 100% Delaware LLC
IRT Coral Springs , LLC(4) 93% Delaware LLC
--------------
(1) IRT Capital Corporation was liquidated in January 2001. Prior to
liquidation, 96% of the corporation's non-voting stock and 1% of the voting
stock was owned directly by IRT Property Company.
(2) 96% of the corporation's non-voting stock and 1% of the voting stock is
owned directly by IRT Property Company. The Company elected TRS status on
3/15/01 effective 1/01/01.
(3)These entities are Qualified REIT Subsidiaries ("QRS")
(4) IRT Heritage Walk and IRT MacLand Pointe were established on 2/22/01 and are
100% owned by IRT Property Company. These entities are bankruptcy remote
entities which presently have no assets. IRT Coral Springs was established on
2/22/01 and is 100% owned by IRT Partners LP. This entity is a bankruptcy remote
entity which presently has no assets.
27
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EXHIBIT A
IRT Property Company ("Issuer")
Medium-Term Notes
Due Nine Months or More from Date of Issue
TERMS AGREEMENT
, 20__
IRT Property Company
000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention:
Ladies and Gentlemen:
We offer to purchase, on and subject to the terms and
conditions of the Agency Agreement attached hereto ("Agency Agreement"), the
following Notes ("Notes") on the following terms:
Title:
Currency or Currency Units:
Stated Maturity:
Principal Amount:
Public Offering Price: [___%, subject to change by the
undersigned -- The Agent[s] propose[s]
to reoffer the above Notes from time
to time at market prices prevailing at
the time of sale, at prices related to
such prevailing market prices or at
negotiated prices.]
Original Issue Discount Security: Yes [ ] No [ ]
Purchase Price (to be paid in [New York Clearing House (next
day) -- immediately available] funds): ___% [, plus accrued
interest, if any, from the Trade Date to the Settlement Date]
Underwriting Discount (%):
In the case of Fixed Rate Notes, the interest rate and, if
different from the dates set forth
29
in the Prospectus Supplement, the Interest Payment Date or
Dates and corresponding Regular Record Date or Dates:
In the case of Floating Rate Notes, the Interest Rate formula,
Initial Interest Rate, the Index Maturity, the Spread or
Spread Multiplier (if any), the maximum or minimum Interest
rate limitations (if any), the Interest Reset Dates, the
Interest Determination Dates, the Calculation Agent, the
Calculation Dates, the Interest Payment Dates and the Regular
Record Dates, in each case to the extent applicable:
Redemption (option of the Issuer), if any:
Redemption Date(s):
Redemption Prices(s)(%):
Notice Period:
Repayment (option of the Holder), if any:
Redemption Date(s):
Redemption Price(s)(%):
Notice Period:
Sinking Fund, if applicable:
Trade Date:
Settlement Date (Issue Date):
* * * * *
Details for Settlement
_ Book-entry Security
_ Certificated Securities
[Additional Purchase Information -- to be completed by Agent,
if desired, to the extent available]
Exact name in which the Note or Notes are to be registered
("registered owner"):
Exact address of registered owner and, if different, the
address for delivery of notices and payment of principal and
any premium and interest:
Taxpayer identification number of registered owner:
Principal amount of each Note in authorized denominations to
be delivered to registered owner:
A-2
30
Exchange rate applicable to purchase Foreign Currency Notes to
be paid for in U.S. dollars:
* * * * *
Our agreement to purchase the Notes hereunder is subject to
the conditions set forth in the Agency Agreement, including the conditions set
forth in paragraphs (e), (f), (g) and (h) of Section 5 thereof [, and [specify
additional conditions, if any]]. If for any reason the purchase by the
undersigned of the Notes is not consummated other than because of a default by
the undersigned or a failure to satisfy a condition set forth in clause (iii),
(iv) or (v) of Section 5(c) of the Agency Agreement, the Issuer shall reimburse
the undersigned for all out-of-pocket expenses reasonably incurred by the
undersigned in connection with the offering of the Notes and not otherwise
required to be reimbursed pursuant to Section 4 of the Agency Agreement.
[Insert any additional agreements, conditions, etc.]
A-3
31
Unless the undersigned has received notification from the
Issuer within [one Business Day (as defined in the Agency Agreement)] that the
Issuer does not agree to the terms set forth herein, this Terms Agreement shall
constitute an agreement between the Issuer and the undersigned for the sale and
purchase of the Notes upon the terms set forth herein and in the Agency
Agreement.
Very truly yours,
CREDIT SUISSE FIRST BOSTON
CORPORATION
By
-------------------------------------------
WACHOVIA SECURITIES, INC.
By
-------------------------------------------
Accepted and agreed to
as of the date set forth above.
IRT PROPERTY COMPANY
By:
------------------------------
IRT PARTNERS, L.P.
As a Guarantor
By: IRT Property Company
Its General Partner
By:
------------------------------
Name:
Title:
IRT CAPITAL CORPORATION II
As Guarantor
By:
------------------------------
Name:
Title:
IRT MANAGEMENT COMPANY
By:
------------------------------
Name:
Title:
IRT ALABAMA, INC.
As a Guarantor
By:
------------------------------
Name:
Title:
X-0
00
XXXXXXX X
Schedule of Agents' Commissions
The Company agrees to pay each Agent a commission equal to the
following percentage of the amount of each Note sold by such Agent:
Maturity Range of Notes Percentage of Principal
----------------------- -----------------------
From 9 months to less than one year 0.125%
From one year to less than 18 months 0.150%
From 18 months to less than 2 years 0.200%
From 2 years to less than 3 years 0.250%
From 3 years to less than 4 years 0.350%
From 4 years to less than 5 years 0.450%
From 5 years to less than 6 years 0.500%
From 6 years to less than 7 years 0.550%
From 7 years to less than 10 years 0.600%
From 10 years to less than 15 years 0.625%
From 15 years to less than 20 years 0.700%
From 20 years up to and including 30 years 0.750%
Address for Notice to you shall be directed to you at 000 Xxxxxxxx
Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, Attention: Chief Financial
Officer (Facsimile No. (000) 000-0000).
Notices to Credit Suisse First Boston Corporation shall be directed to
it at Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Short
and Medium Term Products Group (Facsimile No.: (000) 000-0000).
Notices to Wachovia Securities, Inc. shall be directed to it at 000
Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxx X. Xxxx
(Facsimile No.: (000) 000-0000).
33
EXHIBIT C
IRT PROPERTY CORPORATION
Medium-Term Note Administrative Procedures
______________________, 20__
The Medium-Term Notes, Due from Nine Months or more from Date
of Issue in an aggregate principal amount of $100,000,000 (the "Notes") of IRT
Property Company (the "Company") are to be offered on a continuing basis. Credit
Suisse First Boston Corporation and Wachovia Securities, Inc., as agents (each
an "Agent," and collectively the "Agents"), have agreed to solicit purchases of
Notes. The Agents will not be obligated to purchase Notes for their own account.
The Notes are being sold pursuant to an Agency Agreement between the Company and
the Agents dated the date hereof (the "Agency Agreement"). The Notes will rank
pari passu with all other unsecured and unsubordinated debt of the Company and
have been registered with the Securities and Exchange Commission (the
"Commission"). The Notes will be issued under the Indenture dated as of
September 9, 1998 (as amended and supplemented, the "Indenture"), between the
Company and Sun Trust Bank, as trustee (the "Trustee"), and will be guaranteed
as to payment of principal and interest by each of IRT Partners, L.P., IRT
Capital Partners Corporation II, IRT Management Company and IRT Alabama, Inc..
The Agency Agreement provides that Notes may also be purchased
by an Agent acting solely as principal and not as agent. In the event of any
such purchase, the functions of both the Agent and the beneficial owner under
the administrative procedures set forth below shall be performed by such Agent
acting solely as principal, unless otherwise agreed to between the Company and
such Agent acting as principal.
Each Note will be represented by either a Global Security (as
defined hereinafter) delivered to the Trustee, as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained by DTC (a
"Book-Entry Note") or a certificate delivered to the Holder thereof or a Person
designated by such Holder (a "Certificated Note"). Only Notes denominated and
payable in U.S. dollars may be issued as Book-Entry Notes. An owner of a
beneficial interest in a Book-Entry Note will not be entitled to receive a
certificate representing such Note.
The procedures to be followed during, and the specific terms
of, the solicitation of orders by the Agents and the sale as a result thereof by
the Company are explained below. Administrative and record-keeping
responsibilities will be handled for the Company by its Treasury Department. The
Company will advise the Agents and the Trustee in writing of those persons
handling administrative responsibilities with whom the Agents and the Trustee
are to communicate regarding orders to purchase Notes and the details of their
delivery.
Administrative procedures and specific terms of the offering
are explained below. Book-Entry Notes will be issued in accordance with the
administrative procedures set forth in Part I hereof, as adjusted in accordance
with changes in DTC's operating requirements, and Certificated Notes will be
issued in accordance with the administrative procedures set forth in Part II
hereof. Unless otherwise defined herein, terms defined in the Indenture and the
Notes shall be used herein as therein defined. Notes for which
34
interest is calculated on the basis of a fixed interest rate, which may be zero,
are referred to herein as "Fixed Rate Notes." Notes for which interest is
calculated on the basis of a floating interest rate are referred to herein as
"Floating Rate Notes." To the extent the procedures set forth below conflict
with the provisions of the Notes, the Indenture, DTC's operating requirements or
the Agency Agreement, the relevant provisions of the Notes, the Indenture, DTC's
operating requirements and the Agency Agreement shall control.
All communications hereunder will be in writing and effective only upon
receipt, and, if sent, will be mailed, delivered, telecopied or telegraphed and
confirmed to the Agents and the Company at the following addresses:
If to the Company:
IRT Property Company
000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Facsimile No.: (000) 000-0000
If to Credit Suisse First Boston Corporation:
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Attention: Short and Medium Term Products Group
Facsimile No.: (000) 000-0000
If to Wachovia Securities, Inc.:
Wachovia Securities, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxx
Facsimile No.: (000) 000-0000
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PART I
Administrative Procedures for
Book-Entry Notes
In connection with the qualification of the Book-Entry Notes
for eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representations from the Company and the Trustee to DTC and a Medium-Term Note
Certificate Agreement between the Trustee and DTC and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement system ("SDFS").
ISSUANCE: On any date of settlement (as defined under "Settlement"
below) for one or more Book-Entry Notes (each a "Settlement
Date"), the Company will issue a single global security in
fully registered form without coupons (a "Global Security")
representing up to $100,000,000 principal amount of all such
Book-Entry Notes that have the same original issue date,
original issue discount provisions, if any, Interest Payment
Dates, Regular Record Dates, Interest Payment Period,
redemption provisions, if any, Maturity Date, and, in the case
of Fixed Rate Notes, interest rate, in the case of Floating
Rate Notes, initial interest rate, Base Rate, Index Maturity,
Interest Reset Period, Interest Reset Dates, Spread or Spread
Multiplier, if any, minimum interest rate, if any, maximum
interest rate, if any and, in the case of a Floating Rate
Book-Entry Note for which the Base Rate is LIBOR, its
Designated LIBOR Page and Designated LIBOR Currency
(collectively, the "Terms"). Each Global Security will be
dated and issued as of the date of its authentication by the
Trustee. Each Global Security will bear an Original Issue
Date, which will be (i) with respect to an original Global
Security (or any portion thereof), the original issue date
specified in such Global Security and (ii) following a
consolidation of Global Securities, with respect to the Global
Security resulting from such consolidation, the most recent
Interest Payment Date to which interest has been paid or duly
provided for on the predecessor Global Securities, regardless
of the date of authentication of such resulting Global
Security. No Global Security will represent (i) both Fixed
Rate and Floating Rate Book-Entry Notes or (ii) any
Certificated Note.
IDENTIFICATION
AND
CUSIP
NUMBERS: The Company has arranged with the CUSIP Service Bureau of
Standard & Poor's Corporation (the "CUSIP Service Bureau") for
the reservation of a series of CUSIP numbers, which series
consists of not less than 10 CUSIP numbers and relates to
Global Securities representing Book-Entry Notes and book-entry
medium-term notes issued by the Company. The Trustee, the
Company and DTC have obtained from the CUSIP Service Bureau a
written list of such reserved CUSIP numbers. The Company will
assign CUSIP numbers to Global Securities as described below
under Settlement Procedure "B." DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers that the
Company has assigned to Global Securities. The Company will
reserve additional CUSIP numbers for assignment to Global
Securities when, at any time, less than 3 of the reserved
CUSIP numbers remain unassigned to Global Securities and, if
it deems it necessary or desirable. Upon obtaining such
additional CUSIP numbers, the Company shall deliver a list of
such additional CUSIP numbers to the Trustee and DTC.
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REGISTRATION: Global Securities will be issued only in fully registered form
without coupons. Each Global Security will be registered in
the name of CEDE & CO., as nominee for DTC, on the securities
register for the Notes maintained under the Indenture. The
beneficial owner of a Book-Entry Note (or one or more indirect
participants in DTC designated by such owner) will designate
one or more participants in DTC (with respect to such
Book-Entry Note, the "Participants") to act as agent or agents
for such owner in connection with the book-entry system
maintained by DTC, and DTC will record in book-entry form, in
accordance with instructions provided by such Participants, a
credit balance with respect to such beneficial owner in such
Book-Entry Note in the account of such Participants. The
ownership interest of such beneficial owner (or such
participant) in such Book-Entry Note will be recorded through
the records of such Participants or through the separate
records of such Participants and one or more indirect
participants in DTC.
TRANSFERS: Transfers of a Book-Entry Note will be accomplished by book
entries made by DTC and, in turn, by Participants (and in
certain cases, one or more indirect participants in DTC)
acting on behalf of beneficial transferors and transferees of
such Note.
EXCHANGES: The Trustee may deliver to DTC and the CUSIP Service Bureau at
any time a written notice of consolidation (a copy of which
shall be attached to the resulting Global Security described
below) specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent (A) Fixed Rate
Book-Entry Notes having the same Terms and for which interest
has been paid to the same date or (B) Floating Rate Book-Entry
Notes having the same Terms and for which interest has been
paid to the same date, (ii) a date, occurring at least thirty
days after such written notice is delivered and at least
thirty days before the next Interest Payment Date for such
Book-Entry Notes, on which such Global Securities shall be
exchanged for a single replacement Global Security and (iii) a
new CUSIP number, obtained from the Company, to be assigned to
such replacement Global Security. Upon receipt of such a
notice, DTC will send to its participants (including the
Trustee) a written reorganization notice to the effect that
such exchange will occur on such date. Prior to the specified
exchange date, the Trustee will deliver to the CUSIP Service
Bureau a written notice setting forth such exchange date and
such new CUSIP number and stating that, as of such exchange
date, the CUSIP numbers of the Global Securities to be
exchanged will no longer be valid. On the specified exchange
date, the Trustee will exchange such Global Securities for a
single Global Security bearing the new CUSIP number and the
CUSIP numbers of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures, be canceled
and not immediately reassigned. Notwithstanding the foregoing,
if the Global Securities to be exchanged exceed $100,000,000
in aggregate principal amount, one Global Security will be
authenticated and issued to represent each $100,000,000 of
principal amount of the exchanged Global Securities and an
additional Global Security will be authenticated and issued to
represent any remaining principal amount of such Global
Securities (see "Denominations" below).
MATURITIES: Each Book-Entry Note will mature nine months or more after the
settlement date for such Note.
NOTICE OF
REPAYMENT
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TERMS: With respect to each Book-Entry Note that is repayable at the
option of the Holder, the Trustee will furnish DTC on the
settlement date pertaining to such Note a notice setting forth
the terms of such repayment option. Such terms shall include
the start date and end dates of the first exercise period, the
purchase date following such first exercise period, the
frequency that such exercise periods shall occur (i.e.,
quarterly, semi-annually, annually, bi-annually, etc.) and if
the repayment option expires before maturity, the same
information (except frequency) concerning the last exercise
period. It is understood that the exercise period shall be at
least fifteen calendar days long and that the purchase date
shall be at least seven calendar days after the last day of
the exercise period.
DENOMINA-
TIONS: Book-Entry Notes will be issued in principal amounts of $1,000
or any amount in excess thereof that is an integral multiple
of $1,000. Global Securities will be denominated in principal
amounts not in excess of $100,000,000. If one or more
Book-Entry Notes having an aggregate principal amount in
excess of $100,000,000 would, but for the preceding sentence,
be represented by a single Global Security, then one Global
Security will be authenticated and issued to represent each
$100,000,000 principal amount of such Book-Entry Note or Notes
and an additional Global Security will be authenticated and
issued to represent any remaining principal amount of such
Book-Entry Note or Notes. In such a case, each of the Global
Securities representing such Book-Entry Note or Notes shall be
assigned the same CUSIP number.
INTEREST: General. Interest, if any, on each Book-Entry Note will accrue
from the original issue date for the first interest period or
the last date to which interest has been paid, if any, for
each subsequent interest period, on the Global Security
representing such Book-Entry Note, and will be calculated and
paid in the manner described in such Book-Entry Note and in
the Prospectus (as defined in the Agency Agreement), as
supplemented by the applicable Pricing Supplement. Unless
otherwise specified therein, each payment of interest on a
Book-Entry Note will include interest accrued to but excluding
the Interest Payment Date (provided that, in the case of
Floating Rate Book-Entry Notes which reset daily or weekly,
interest payments will include accrued interest to and
including the Regular Record Date immediately preceding the
Interest Payment Date) or to but excluding Maturity (other
than a Maturity of a Fixed Rate Book-Entry Note occurring on
the thirty-first day of a month, in which case such payment of
interest will include interest accrued to but excluding the
thirtieth day of such month). Interest payable at the Maturity
of a Book-Entry Note will be payable to the Person to whom the
principal of such Note is payable. Standard & Poor's
Corporation will use the information received in the pending
deposit message described under Settlement Procedure "C" below
in order to include the amount of any interest payable and
certain other information regarding the related Global
Security in the appropriate (daily or weekly) bond report
published by Standard & Poor's Corporation.
Regular Record Dates. The Regular Record Date with respect to
any Interest Payment Date shall be the date fifteen calendar
days immediately preceding such Interest Payment Date (unless
otherwise specified pursuant to Settlement Procedure "A"
below).
Interest Payment Dates on Fixed Rate Book-Entry Notes. Unless
otherwise specified pursuant to Settlement Procedure "A"
below, interest payments on Fixed Rate Book-Entry Notes will
be made semi-annually on April 1, and October 1 of each year
and at Maturity; provided, however, that in the case of a
Fixed Rate Book-Entry Note issued between a
C-5
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Regular Record Date and an Interest Payment Date, the first
interest payment will be made on the Interest Payment Date
following the next succeeding Regular Record Date to the
Person in whose name such Note is registered on the Regular
Record Date for such succeeding Interest Payment Date.
Interest Payment Dates on Floating Rate Book-Entry Notes.
Interest payments will be made on Floating Rate Book-Entry
Notes monthly, quarterly, semi-annually or annually. Unless
otherwise agreed upon, interest will be payable, in the case
of Floating Rate Book-Entry Notes with a monthly Interest
Payment Period, on the third Wednesday of each month; with a
quarterly Interest Payment Period, on the third Wednesday of
March, June, September and December of each year; with a
semi-annual Interest Payment Period on the third Wednesday of
the two months specified pursuant to Settlement Procedure "A"
below; and with an annual Interest Payment Period, on the
third Wednesday of the month specified pursuant to Settlement
Procedure "A" below; provided, however, that if an Interest
Payment Date for a Floating Rate Book-Entry Note would
otherwise be a day that is not a Business Day with respect to
such Floating Rate Book-Entry Note, such Interest Payment Date
will be the next succeeding Business Day with respect to such
Floating Rate Book-Entry Note, except in the case of a
Floating Rate Book-Entry Note for which the Base Rate is
LIBOR, if such Business Day is in the next succeeding calendar
month, such Interest Payment Date will be the immediately
preceding Business Day; and provided further, that in the case
of a Floating Rate Book-Entry Note issued between a Regular
Record Date and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date following
the next succeeding Regular Record Date to the Person in whose
name such Note is registered on the Regular Record Date for
such succeeding Interest Payment Date.
Notice of Interest Payment and Regular Record Dates. At the
request of the Company the Trustee will deliver to the Company
and DTC a written list of Regular Record Dates and Interest
Payment Dates that will occur with respect to Book-Entry Notes
during the six-month period beginning on such first Business
Day. Promptly after each Interest Determination Date for
Floating Rate Book-Entry Notes, the Trustee, as Calculation
Agent, will notify Standard & Poor's Corporation of the
interest rates determined on such Interest Determination Date.
CALCULATION OF
INTEREST: Fixed Rate Book-Entry Notes. Interest on Fixed Rate Book-Entry
Notes (including interest for partial periods) will be
calculated on the basis of a 360-day year of twelve thirty-day
months.
Floating Rate Book-Entry Notes. Interest rates on Floating
Rate Book-Entry Notes will be determined as set forth in the
form of Notes. Interest on Floating Rate Book-Entry Notes,
except as otherwise set forth therein, will be calculated on
the basis of actual days elapsed and a year of 360 days,
except that in the case of a Floating Rate Book-Entry Note for
which the Base Rate is Treasury Rate, interest will be
calculated on the basis of the actual number of days in the
year.
PAYMENTS OF
PRINCIPAL AND
INTEREST: Payment of Interest Only. Promptly after each Regular Record
Date, the Trustee will deliver to the Company and DTC, a
written notice setting forth, by CUSIP number, the amount of
interest to be paid on each Global Security on the following
Interest Payment Date (other than an Interest Payment Date
coinciding with Maturity) and the total of such amounts.
C-6
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DTC will confirm the amount payable on each Global Security on
such Interest Payment Date by reference to the appropriate
(daily or weekly) bond reports published by Standard & Poor's
Corporation. The Company will pay to the Trustee, as paying
agent, the total amount of interest due on such Interest
Payment Date (other than at Maturity), and the Trustee will
pay such amount to DTC, at the times and in the manner set
forth below under "Manner of Payment." If any Interest Payment
Date for a Book-Entry Note is not a Business Day, the payment
due on such day shall be made on the next succeeding Business
Day and no interest shall accrue on such payment for the
period from and after such Interest Payment Date, except that
in the case of an Interest Payment Date on a Floating Rate
Note for which the Base Rate is LIBOR, if such Business Day is
in the succeeding calendar month, such Interest Payment Date
will be the preceding Business Day.
Payments at Maturity. On or about the first Business Day of
each month, the Trustee will deliver to the Company and DTC a
written list of principal and interest to be paid on each
Global Security maturing (on a Maturity or Redemption Date or
otherwise) in the following month. The Company and DTC will
confirm the amounts of such principal and interest payments
with respect to each such Global Security on or about the
fifth Business Day preceding the Maturity of such Global
Security. On or before Maturity, the Company will pay to the
Trustee, as paying agent, the principal amount of such Global
Security, together with interest due at such Maturity. The
Trustee will pay such amount to DTC at the times and in the
manner set forth below under "Manner of Payment." If any
Maturity of a Global Security representing Book-Entry Notes is
not a Business Day, the payment due on such day shall be made
on the next succeeding Business Day and no interest shall
accrue on such payment for the period from and after such
Maturity. Promptly after payment to DTC of the principal and
interest due at Maturity of such Global Security, the Trustee
will cancel such Global Security in accordance with the
Indenture and so advise the Company.
Manner of Payment. The total amount of any principal and
interest due on Global Securities on any Interest Payment Date
or at Maturity shall be paid by the Company to the Trustee in
immediately available funds no later than 9:30 A.M. (New York
City time) on such date. The Company will make such payment on
such Global Securities by instructing the Trustee to withdraw
funds from an account maintained by the Company at the Trustee
or by wire transfer to the Trustee. The Company will confirm
any such instructions in writing to the Trustee. On each
payment date the Trustee will pay DTC in accordance with DTC's
standard procedures. On each Interest Payment Date (other than
at Maturity), interest payments shall be made to DTC, in funds
available for immediate use by DTC, in accordance with
existing arrangements between the Trustee and DTC. On each
such date, DTC will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds available for
immediate use to the respective Participants in whose names
the Book-Entry Notes represented by such Global Securities are
recorded in the book-entry system maintained by DTC. Neither
the Company (as issuer or as paying agent) nor the Trustee
shall have any direct responsibility or liability for the
payment by DTC to such Participants of the principal of and
interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on a
Book-Entry Note will be determined and withheld by the
Participant, indirect participant in DTC or other Person
responsible for forwarding payments and materials directly to
the beneficial owner of such Note.
C-7
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PROCEDURE FOR
SETTING AND
POSTING: The Company and the Agents will discuss from time to time the
aggregate principal amount of, the issuance price of, and the
interest rates to be borne by, Book-Entry Notes that may be
sold as a result of the solicitation of orders by the Agents.
If the Company decides to set prices of, and rates borne by,
any Book-Entry Notes in respect of which the Agents are to
solicit orders (the setting of such prices and rates to be
referred to herein as "posting") or if the Company decides to
change prices or rates previously posted by it, it will
promptly advise the Agents of the prices and rates to be
posted.
ACCEPTANCE
AND REJECTION
OF ORDERS: Unless otherwise instructed by the Company, each Agent will
advise the Company promptly by telephone of all orders to
purchase Book-Entry Notes received by such Agent, other than
those rejected by it in whole or in part in the reasonable
exercise of its discretion. Unless otherwise agreed by the
Company and the Agents, the Company has the right to accept
orders to purchase Book-Entry Notes and may reject any such
orders in whole or in part.
PREPARATION OF
PRICING
SUPPLEMENT: If any order to purchase a Book-Entry Note is accepted by or
on behalf of the Company, the Company will prepare a pricing
supplement (a "Pricing Supplement") reflecting the terms of
such Book-Entry Note and will arrange to have the Pricing
Supplement filed with the Commission in accordance with the
applicable paragraph of Rule 424(b) under the Act and will
supply ten copies thereof (and additional copies if requested)
to the Agent which presented the order (the "Presenting
Agent"). The Presenting Agent will cause a Prospectus and
Pricing Supplement to be delivered to the purchaser of such
Book-Entry Note.
In each instance that a Pricing Supplement is prepared, the
Presenting Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing Supplements
(other than those retained for files) will be destroyed.
SUSPENSION OF
SOLICITATION;
AMENDMENT OR
SUPPLEMENT: Subject to the Company's representations, warranties and
covenants contained in the Agency Agreement, the Company may
instruct the Agents to suspend at any time, for any period of
time or permanently, the solicitation of orders to purchase
Book-Entry Notes. Upon receipt of such instructions, the
Agents will forthwith suspend solicitation until such time as
the Company has advised them that such solicitation may be
resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly advise
the Agents and the Trustee whether such orders may be settled
and whether copies of the Prospectus as in effect at the time
of the suspension, together with the appropriate Pricing
Supplement, may be delivered in connection with the settlement
of such orders. The Company will have the sole responsibility
for such decision and for any arrangements that may be made in
the event that the Company determines that such orders may not
be settled or that copies of such Prospectus may not be so
delivered.
C-8
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If the Company decides to amend or supplement the Registration
Statement (as defined in the Agency Agreement) or the
Prospectus, it will promptly advise the Agents and furnish the
Agents with the proposed amendment or supplement and with such
certificates and opinions as are required, all to the extent
required by and in accordance with the terms of the Agency
Agreement. Subject to the provisions of the Agency Agreement,
the Company may file with the Commission any such supplement
to the Prospectus relating to the Notes. The Company will
provide the Agents and the Trustee with copies of any such
supplement, and confirm to the Agents that such supplement has
been filed with the Commission pursuant to the applicable
paragraph of Rule 424(b).
PROCEDURES FOR
RATE CHANGES: When the Company has determined to change the
interest rates of Book-Entry Notes being offered, it will
promptly advise the Agents and the Agents will forthwith
suspend solicitation of orders. The Agents will telephone the
Company with recommendations as to the changed interest rates.
At such time as the Company has advised the Agents of the new
interest rates, the Agents may resume solicitation of orders.
Until such time only "indications of interest" may be
recorded. Within two Business Days after any sale of
Book-Entry Notes, the Company will file with the Commission a
Pricing Supplement to the Prospectus relating to such
Book-Entry Notes that reflects the applicable interest rates
and other terms and will deliver copies of such Pricing
Supplement to the Agents.
DELIVERY OF
PROSPECTUS: A copy of the Prospectus and, where applicable, a Pricing
Supplement, relating to a Book-Entry Note, must accompany or
precede the earliest of confirmation of the purchase of such
Book-Entry Note, or payment for such Book-Entry Note by its
purchaser. If notice of a change in the terms of the
Book-Entry Notes is received by the Agents between the time an
order for a Book-Entry Note is placed and the time written
confirmation thereof is sent by the Presenting Agent to a
customer or his agent, such confirmation shall be accompanied
by a Prospectus and Pricing Supplement setting forth the terms
in effect when the order was placed. Subject to "Suspension of
Solicitation; Amendment or Supplement" above, the Presenting
Agent timely will deliver a Prospectus and Pricing Supplement
as herein described with respect to each Book-Entry Note sold
by it. The Company will make such delivery if such Book-Entry
Note is sold directly by the Company to a purchaser (other
than an Agent).
CONFIRMATION: For each order to purchase a Book-Entry Note solicited by any
Agent and accepted by or on behalf of the Company, the
Presenting Agent will issue a confirmation to the purchaser,
with a copy to the Company, setting forth the details set
forth above and delivery and payment instructions.
SETTLEMENT: The receipt by the Company of immediately available funds in
payment for a Book-Entry Note and the authentication and
issuance of the Global Security representing such Book-Entry
Note shall constitute "settlement" with respect to such
Book-Entry Note. All orders accepted by the Company will be
settled on the third Business Day following the date of sale
of such Book-Entry Note pursuant to the timetable for
settlement set forth below unless the Company, the Trustee and
the purchaser agree to settlement on another day which shall
be no earlier than the next Business Day following the date of
sale.
SETTLEMENT
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PROCEDURES: Settlement Procedures with regard to each Book-Entry Note sold
by the Company through any Agent, as agent, shall be as
follows:
A. The Presenting Agent will advise the Company
by telephone of the following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry Note,
the interest rate or, in the case of a Floating Rate
Book-Entry Note, the Base Rate, initial interest rate (if
known at such time), Index Maturity, Interest Reset Period,
Interest Reset Dates, Spread or Spread Multiplier (if any),
minimum interest rate (if any), maximum interest rate (if any)
and, in the case of a Floating Rate Book-Entry Note for which
the Base Rate is LIBOR, the Designated LIBOR Page and
Designated LIBOR Currency.
4. Interest Payment Dates, Regular Record Dates
(if other than the dates fifteen calendar days preceding such
Interest Payment Dates), the Interest Payment Period, Interest
Determination Dates, the Calculation Dates and the Calculation
Agent.
5. Redemption provisions, if any.
6. Settlement date.
7. Price.
8. Presenting Agent's commission, determined as
provided in Section 2 of the Agency Agreement.
B. The Company will assign a CUSIP number to
the Global Security representing such Book-Entry Note and then
advise the Trustee by telephone (confirmed in writing at any
time on the same date) or electronic transmission of the
information set forth in Settlement Procedure "A" above, such
CUSIP number and the name of the Presenting Agent. The Company
will also notify the Presenting Agent by telephone of such
CUSIP number as soon as practicable. Each such communication
by the Company shall constitute a representation and warranty
by the Company to the Trustee and the Agents that (i) such
Book-Entry Note is then, and at the time of issuance and sale
thereof will be, duly authorized for issuance and sale by the
Company, (ii) such Book-Entry Note, and the Global Security
representing such Book-Entry Note, will conform with the terms
of the Indenture, and (iii) after giving effect to the
issuance of such Book-Entry Note and any other Securities (as
defined in the Agency Agreement) to be issued on or prior to
the settlement date for the sale of such Book-Entry Note, the
aggregate amount of Securities which have been issued and sold
by the Company will not exceed the amount of Securities
registered under the Registration Statement (as defined in the
Agency Agreement). Such confirmation shall constitute a
Company Order to the Trustee for the authentication of such
Global Security and shall be deemed to satisfy the
requirements for the delivery of the Board Resolution and
Officers' Certificates set forth in the third paragraph of
Section 303 of the Indenture.
C. The Trustee will enter a pending deposit
message through DTC's Participant Terminal System providing
the following settlement information to DTC (which shall route
such information to Standard & Poor's Corporation) and the
Presenting Agent:
1. The information set forth in
Settlement Procedure "A."
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2. Identification as a Fixed Rate
Book-Entry Note or a Floating Rate Book-Entry Note.
3. Initial Interest Payment Date for
such Book-Entry Note, number of days by which such date
succeeds the related Regular Record Date (or, in the case of
Floating Rate Notes which reset daily or weekly, the date five
calendar days immediately preceding the Interest Payment Date)
and amount of interest payable on such Interest Payment Date
(which amount shall be confirmed by the Trustee).
4. The Interest Payment Period.
5. CUSIP number of the Global Security
representing such Book-Entry Note.
6. Whether such Global Security will
represent any other Book-Entry Note (to the extent known at
such time).
D. To the extent the Company has not already
done so, the Company will deliver to the Trustee a Global
Security in a form that has been approved by the Company, the
Agents and the Trustee.
E. The Trustee will complete such Book-Entry
Note, stamp the appropriate legend, as instructed by DTC, if
not already set forth thereon, and authenticate the Global
Security representing such Book-Entry Note.
F. DTC will credit such Book-Entry Note to the
Trustee's participant account at DTC.
G. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System instructing DTC to
(i) debit such Book-Entry Note to the Trustee's participant
account and credit such Book-Entry Note to the Presenting
Agent's participant account and (ii) debit the Presenting
Agent's settlement account and credit the Trustee's settlement
account for an amount equal to the price of such Book-Entry
Note less the Presenting Agent's commission or discounts, if
applicable. The entry of such a deliver order shall constitute
a representation and warranty by the Trustee to DTC that (i)
the Global Security representing such Book-Entry Note has been
issued and authenticated and (ii) the Trustee is holding such
Global Security pursuant to the Medium-Term Note Certificate
Agreement between the Trustee and DTC.
H. The Presenting Agent will enter an SDFS
deliver order through DTC's Participant Terminal System
instructing DTC (i) to debit such Book-Entry Note to the
Presenting Agent's participant account and credit such
Book-Entry Note to the participant accounts of the
Participants with respect to such Book-Entry Note and (ii) to
debit the settlement accounts of such Participants and credit
the settlement account of the Presenting Agent for an amount
equal to the price of such Book-Entry Note.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement Procedures "G" and "H"
will be settled in accordance with SDFS operating procedures
in effect on the settlement date.
J. The Trustee will, upon receipt of funds from
the Agent in accordance with Settlement Procedure "G," wire
transfer to the account of the Company maintained at Wachovia
Bank, N.A. funds available for immediate use in the amount
transferred to the Trustee in accordance with Settlement
Procedure "G."
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K. The Presenting Agent will confirm the
purchase of such Book-Entry Note to the purchaser either by
transmitting to the Participants with respect to such
Book-Entry Note a confirmation order or orders through DTC's
institutional delivery system or by mailing a written
confirmation to such purchaser.
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SETTLEMENT
PROCEDURES
TIMETABLE: For orders of Book-Entry Notes solicited by any Agent and
accepted by the Company for settlement on the first Business
Day after the sale date, Settlement Procedures "A" through "K"
set forth above shall be completed as soon as possible but not
later than the respective times (New York City time) set forth
below:
Settlement
Procedure Time
---------- ----
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the Business Day before
settlement
E 9:00 A.M. on Settlement Date
F 10:00 A.M. on Settlement Date
G-H 2:00 P.M. on Settlement Date
I 4:45 P.M. on Settlement Date
J-K 5:00 P.M. on Settlement Date
If a sale is to be settled more than one Business Day after
the sale date, Settlement Procedures "X," "X" and "C" shall be
completed as soon as practicable but no later than 11:00 A.M.
and 12:00 Noon on the first Business Day after the sale date
and no later than 2:00 P.M. on the Business Day before the
settlement date, respectively. If the initial interest rate
for a Floating Rate Book-Entry Note has not been determined at
the time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed as soon
as such rate has been determined but no later than 12:00 Noon
and 2:00 P.M., respectively, on the Business Day before the
settlement date. Settlement Procedure "I" is subject to
extension in accordance with any extension of Fedwire closing
deadlines and in the other events specified in SDFS operating
procedures in effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled or canceled,
the Trustee will deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to such effect by no
later than 2:00 P.M. on the Business Day immediately preceding
the scheduled settlement date.
FAILURE TO
SETTLE: If the Trustee fails to enter an SDFS deliver order with
respect to a Book-Entry Note pursuant to Settlement Procedure
"G," the Trustee may deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable, a withdrawal message
instructing DTC to debit such Book-Entry Note to the Trustee's
participant account. DTC will process the withdrawal message,
provided that the Trustee's participant account contains a
principal amount of the Global Security representing such
Book-Entry Note that is at least equal to the principal amount
to be debited. If a withdrawal message is processed with
respect to all the Book-Entry Notes represented by a Global
Security, the Trustee will cancel such Global Security in
accordance with the Indenture and so advise the Company and
will make appropriate entries in its records. The CUSIP number
assigned to such Global Security shall, in accordance with
CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. If a withdrawal message is processed
with respect to one or more, but not all, of the Book-Entry
Notes represented by a Global Security, the Trustee will
C-13
46
exchange such Book-Entry Note for two Global Securities, one
of which shall represent such Book-Entry Notes and shall be
canceled immediately after issuance and the other of which
shall represent the other Book-Entry Notes previously
represented by the surrendered Global Security and shall bear
the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely
paid to the Participants with respect to such Note by the
beneficial purchaser thereof (or a Person, including an
indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the Presenting
Agent may enter SDFS deliver orders through DTC's Participant
Terminal System reversing the orders entered pursuant to
Settlement Procedures "G" and "H," respectively. Thereafter,
the Trustee will deliver the withdrawal message and take the
related actions described in the preceding paragraph. If such
failure shall have occurred for any reason other than a
default by the Presenting Agent in the performance of its
obligations hereunder and under the Agency Agreement, then the
Company will reimburse the Presenting Agent or the Trustee, as
applicable, on an equitable basis for the loss of the use of
the funds during the period when they were credited to the
account of the Company.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating procedures then in effect.
In the event of a failure to settle with respect to one or
more, but not all, of the Book-Entry Notes to have been
represented by a Global Security, the Trustee will provide, in
accordance with Settlement Procedure "E," for the
authentication and issuance of a Global Security representing
the other Book-Entry Notes to have been represented by such
Global Security and will make appropriate entries in its
records.
TRUSTEE NOT TO
RISK FUNDS: Nothing herein shall be deemed to require the Trustee
to risk or expend its own funds in connection with any payment
to the Company, DTC, the Agents or the purchaser, it being
understood by all parties that payments made by the Trustee to
the Company, DTC, the Agents or the purchaser shall be made
only to the extent that funds are provided to the Trustee for
such purpose.
AUTHENTICITY OF
SIGNATURES: The Company will cause the Trustee to furnish to the Company
and the Agents from time to time with the specimen signatures
of each of the Trustee's officers, employees or agents who has
been authorized by the Trustee to authenticate Book-Entry
Notes, but no Agent will have any obligation or liability to
the Company or the Trustee in respect to the authenticity of
the signature of any officer, employee or agent of the Company
or the Trustee on any Book-Entry Note.
PAYMENT OF
EXPENSES: Each Agent shall forward to the Company, on a monthly basis, a
statement of the out-of- pocket expenses incurred by such
Agent during that month that are reimbursable to it pursuant
to the terms of the Agency Agreement. The Company will remit
payment to the Agents currently on a monthly basis.
ADVERTISING
COSTS: The Company will determine with the Agents the amount of
advertising, if any, that may be appropriate in soliciting
offers to purchase the Book-Entry Notes. Advertising expenses,
to the extent previously approved in writing by the Company,
will be paid by the Company.
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PERIODIC
STATEMENTS
FROM THE
TRUSTEE: Upon the request of the Company, the Trustee will send to the
Company a statement setting forth the principal amount of
Book-Entry Notes Outstanding as of that date.
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PART II
Administrative Procedures for Certificated Notes
The Trustee will serve as registrar and transfer agent in
connection with the Certificated Notes.
ISSUANCE: Each Certificated Note will be dated and issued as of the date
of its authentication by the Trustee. Each Certificated Note
will bear an Original Issue Date, which will be (i) with
respect to an original Certificated Note (or any portion
thereof), its original issuance date (which will be the
settlement date) and (ii) with respect to any Certificated
Note (or portion thereof) issued subsequently upon transfer or
exchange of a Certificated Note or in lieu of a destroyed,
lost or stolen Certificated Note, the Original Issue Date of
the predecessor Certificated Note, regardless of the date of
authentication of such subsequently issued Certificated Note.
REGISTRATION: Certificated Notes will be issued only in fully registered
form without coupons.
TRANSFERS AND
EXCHANGES: A Certificated Note may be presented for transfer or exchange
at the principal corporate trust office in The City of New
York of the Trustee. Certificated Notes will be exchangeable
for other Certificated Notes having identical terms but
different authorized denominations without service charge.
Certificated Notes will not be exchangeable for Book-Entry
Notes.
MATURITIES: Each Certificated Note will mature on a date not less than
nine months nor more than thirty years after the Settlement
Date for such Note.
DENOMINA-
TIONS: The denomination of any Certificated Note denominated in U.S.
dollars will be a minimum of $1,000 or any amount in excess
thereof that is an integral multiple of $1,000. The authorized
denominations of Certified Notes denominated in any other
currency will be specified pursuant to "Settlement Procedures"
below.
INTEREST: General. Interest, if any, on each Certificated Note will
accrue from the original issue date for the first interest
period or the last date to which interest has been paid, if
any, for each subsequent interest period, and will be
calculated and paid in the manner described in such Note and
in the Prospectus, as supplemented by the applicable Pricing
Supplement. Unless otherwise specified therein, each payment
of interest on a Certificated Note will include interest
accrued to but excluding the Interest Payment Date (provided
that, in the case of Certificated Notes which reset daily or
weekly, interest payments will include accrued interest to and
including the Regular Record Date immediately preceding the
Interest Payment Date) or to but excluding Maturity (other
than a Maturity of a Fixed Rate Certificated Note occurring on
the thirty-first day of a month, in which case such payment of
interest will include interest accrued to but excluding the
thirtieth day of such month).
Regular Record Dates. The Regular Record Dates with respect to
any Interest Payment Date shall be the date fifteen calendar
days immediately preceding such Interest Payment Date (unless
otherwise specified pursuant to Settlement Procedure "A"
below).
Fixed Rate Certificated Notes. Unless otherwise specified
pursuant to Settlement Procedure "A" below, interest payments
on Fixed Rate Certificated Notes will be made semi-annually on
April 1 and October 1 of each year and at Maturity; provided,
however, that in the case of a Fixed Rate Certificated Note
issued between a Regular Record Date and an Interest
C-16
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Payment Date, the first interest payment will be made on the
Interest Payment Date following the next succeeding Regular
Record Date to the Person in whose name such Note is
registered on the Regular Record Date for such succeeding
Interest Payment Date.
Floating Rate Certificated Notes. Interest payments will be
made on Floating Rate Certificated Notes monthly, quarterly,
semi-annually or annually. Interest will be payable, in the
case of Floating Rate Certificated Notes with a monthly
Interest Payment Period, on the third Wednesday of each month;
with a quarterly Interest Payment Period, on the third
Wednesday of March, June, September and December of each year;
with a semi-annual Interest Payment Period, on the third
Wednesday of the two months specified pursuant to Settlement
Procedure "A" below; and with an annual Interest Payment
Period, on the third Wednesday of the month specified pursuant
to Settlement Procedure "A" below; provided, however, that if
an Interest Payment Date for a Floating Rate Certificated Note
would otherwise be a day that is not a Business Day with
respect to such Floating Rate Certificated Note, such Interest
Payment Date will be the next succeeding Business Day with
respect to such Floating Rate Certificated Note, except in the
case of a Floating Rate Certificated Note for which the Base
Rate is LIBOR, if such Business Day is in the next succeeding
calendar month, such Interest Payment Date will be the
immediately preceding Business Day; and provided further, that
in the case of a Floating Rate Certificated Note issued
between a Regular Record Date and an Interest Payment Date,
the first interest payment will be made on the Interest
Payment Date following the next succeeding Regular Record Date
to the Person in whose name such Note is registered on the
Regular Record Date for such succeeding Interest Payment Date.
CALCULATION OF
INTEREST: Fixed Rate Certificated Notes. Interest on Fixed Rate
Certificated Notes (including interest for partial periods)
will be calculated on the basis of a 360-day year of twelve
thirty-day months.
Floating Rate Certificated Notes. Interest rates on Floating
Rate Certificated Notes will be determined as set forth in the
form of Notes. Interest on Floating Rate Certificated Notes,
except as otherwise set forth therein, will be calculated on
the basis of actual days elapsed and a year of 360 days,
except that in the case of a Floating Rate Certificated Note
for which the Base Rate is Treasury Rate, interest will be
calculated on the basis of the actual number of days in the
year.
PAYMENTS OF
PRINCIPAL AND
INTEREST: The Trustee will pay the principal amount of each Certificated
Note at Maturity upon presentation of such Certificated Note
to the Trustee (unless otherwise specified in the applicable
Pricing Supplement). Such payment, together with payment of
interest due at Maturity of such Certificated Note, will be
made in funds available for immediate use by the Trustee and
in turn by the Holder of such Certificated Note. Certificated
Notes presented to the Trustee at Maturity for payment will be
canceled by the Trustee in accordance with the Indenture. All
interest payments on a Certificated Note (other than interest
due at Maturity) will be made by check drawn on the Trustee
(or another Person appointed by the Trustee) and mailed by the
Trustee to the Person entitled thereto as provided in such
Note and the Indenture (unless otherwise specified in the
applicable Pricing Supplement).
The Trustee will be responsible for reporting interest paid on
Certificated Notes, and where applicable, withholding taxes on
such interest payments, as may be required by law.
If any Interest Payment Date for or the Maturity of a
Certificated Note is not a Business Day, the payment due on
such day shall be made on the next succeeding Business Day and
C-17
50
no interest shall accrue on such payment for the period from
and after such Interest Payment Date or Maturity, as the case
may be, except that in the case of an Interest Payment Date on
a Floating Rate Certificated Note for which the Base Rate is
LIBOR, if such Business Day is in the succeeding calendar
month, such Interest Payment Date will be the preceding
Business Day.
PROCEDURE FOR
RATE SETTING
AND POSTING: The Company and the Agents will discuss from time to time the
aggregate principal amount of, the issuance price of, and the
interest rates to be borne by, Notes that may be sold as a
result of the solicitation of orders by the Agents. If the
Company decides to set prices of, and rates borne by, any
Notes in respect of which the Agents are to solicit orders
(the setting of such prices and rates to be referred to herein
as "posting") or if the Company decides to change prices or
rates previously posted by it, it will promptly advise the
Agents of the prices and rates to be posted.
ACCEPTANCE AND
REJECTION OF
ORDERS: Unless otherwise instructed by the Company, each Agent will
advise the Company promptly by telephone of all orders to
purchase Certificated Notes received by such Agent, other than
those rejected by it in whole or in part in the reasonable
exercise of its discretion. Unless otherwise agreed by the
Company and the Agents, the Company has the sole right to
accept orders to purchase Certificated Notes and may reject
any such orders in whole or in part.
PREPARATION OF
PRICING
SUPPLEMENT: If any order to purchase a Certificated Note is accepted by or
on behalf of the Company, the Company will prepare a Pricing
Supplement reflecting the terms of such Certificated Note and
will arrange to have the Pricing Supplement filed with the
Commission in accordance with the applicable paragraph of Rule
424(b) under the Act and will supply ten copies thereof (and
additional copies if requested) to the Presenting Agent. The
Presenting Agent will cause a Prospectus and Pricing
Supplement to be delivered to the purchaser of such
Certificated Note.
In each instance that a Pricing Supplement is prepared, the
Presenting Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing Supplements
(other than those retained for files), will be destroyed.
SUSPENSION OF
SOLICITATION;
AMENDMENT OR
SUPPLEMENT: Subject to the Company's representations, warranties and
covenants contained in the Agency Agreement, the Company may
instruct the Agents to suspend at any time for any period of
time or permanently, the solicitation of orders to purchase
Certificated Notes. Upon receipt of such instructions, the
Agents will forthwith suspend solicitation until such time as
the Company has advised them that such solicitation may be
resumed.
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In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will promptly advise
the Agents and the Trustee whether such orders may be settled
and whether copies of the Prospectus as in effect at the time
of the suspension, together with the appropriate Pricing
Supplement, may be delivered in connection with the settlement
of such orders. The Company will have the sole responsibility
for such decision and for any arrangements that may be made in
the event that the Company determines that such orders may not
be settled or that copies of such Prospectus may not be so
delivered.
If the Company decides to amend or supplement the Registration
Statement or the Prospectus, it will promptly advise the
Agents and furnish the Agents with the proposed amendment or
supplement and with such certificates and opinions as are
required, all to the extent required by and in accordance with
the terms of the Agency Agreement. Subject to the provisions
of the Agency Agreement, the Company may file with the
Commission any supplement to the Prospectus relating to the
Notes. The Company will provide the Agents and the Trustee
with copies of any such supplement, and confirm to the Agents
that such supplement has been filed with the Commission
pursuant to the applicable paragraph of Rule 424(b).
PROCEDURE FOR
RATE CHANGES: When the Company has determined to change the interest rates
of Certificated Notes being offered, it will promptly advise
the Agents and the Agents will forthwith suspend solicitation
of orders. The Agents will telephone the Company with
recommendations as to the changed interest rates. At such time
as the Company has advised the Agents of the new interest
rates, the Agents may resume solicitation of orders. Until
such time only "indications of interest" may be recorded.
Within two Business Days after any sale of Notes, the Company
will file with the Commission a Pricing Supplement to the
Prospectus relating to such Notes that reflects the applicable
interest rates and other terms and will deliver copies of such
Pricing Supplement to the Agents.
DELIVERY OF
PROSPECTUS: A copy of the Prospectus and, where applicable, a Pricing
Supplement, relating to a Certificated Note, must accompany or
precede the earliest of any written offer by any Agent of such
Certificated Note, confirmation of the purchase of such
Certificated Note, or payment for such Certificated Note by
its purchaser. If notice of a change in the terms of the
Certificated Notes is received by the Agents between the time
an order for a Certificated Note is placed and the time
written confirmation thereof is sent by the Presenting Agent
to a customer or his agent, such confirmation shall be
accompanied by a Prospectus and Pricing Supplement setting
forth the terms in effect when the order was placed. Subject
to "Suspension of Solicitation; Amendment or Supplement"
above, the Presenting Agent timely will deliver a Prospectus
and Pricing Supplement as herein described with respect to
each Certificated Note sold by it. The Company will make such
delivery if such Certificated Note is sold directly by the
Company to a purchaser (other than any Agent).
CONFIRMATION: For each order to purchase a Certificated Note solicited by
any Agent and accepted by or on behalf of the Company, the
Presenting Agent will issue a confirmation to the purchaser,
with a copy to the Company, setting forth the details set
forth above and delivery and payment instructions.
SETTLEMENT: The receipt by the Company of immediately available funds in
exchange for an authenticated Certificated Note delivered to
the Presenting Agent and the Presenting Agent's delivery of
such Certificated Note against receipt of immediately
available funds shall, with respect to such Certificated Note,
constitute "settlement." All orders accepted by the Company
will be settled on the fifth Business Day following the date
of sale pursuant to
C-19
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the timetable for settlement set forth below, unless the
Company, the Trustee and the purchaser agree to settlement on
another day which shall be no earlier than the next Business
Day following the date of sale; provided, however, that the
Trustee shall not, without its prior written consent, be
required to deliver in excess of 300 certificates evidencing
Certificated Notes in any one of the three business days
following the date of sale.
SETTLEMENT
PROCEDURES: Settlement Procedures with regard to each Certificated Note
sold by the Company through any Agent, as agent, shall be as
follows:
A. The Presenting Agent will advise the Company
by telephone of the following settlement information:
1. Name in which such Certificated
Note is to be registered ("Registered Owner").
2. Address of the Registered Owner and
address for payment of principal and interest.
3. Taxpayer identification number of
the Registered Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate
Certificated Note, the interest rate or, in the case of a
Floating Rate Certificated Note, the initial interest rate (if
known at such time), Base Rate, Index Maturity, Interest Reset
Period, Interest Reset Dates, Spread or Spread Multiplier (if
any), minimum interest rate (if any), maximum interest rate
(if any) and, in the case of a Floating Rate certified Note
for which the Base Rate is LIBOR, the Designated LIBOR Page
and Designated LIBOR Currency.
7. Interest Payment Dates, Regular
Record Dates (if other than the dates fifteen calendar days
preceding such Interest Payment Dates), the Interest Payment
Period, the Calculation Dates and the Calculation Agent.
8. Redemption provisions, if any.
9. Settlement date.
10. Price (including currency).
11. Presenting Agent's commission,
determined as provided in Section 2 of the Agency Agreement.
12. Manner of payment at Maturity (if
other than upon presentation of Notes to the Trustee) and
Interest (if other than by check).
B. The Company will advise the Trustee by
telephone (confirmed in writing at any time on the sale date)
or electronic transmission of the information set forth in
Settlement Procedure "A" above and the name of the Presenting
Agent. Each such communication by the Company shall constitute
a representation and warranty by the
C-20
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Company to the Trustee and the Agents that (i) such
Certificated Note is then, and at the time of issuance and
sale thereof will be, duly authorized for issuance and sale by
the Company, (ii) such Certificated Note will conform with the
terms of the Indenture, and (iii) after giving effect to the
issuance of such Certificated Note and any other Securities
(as defined in the Agency Agreement) to be issued on or prior
to the settlement date for the sale of such Certificated Note,
the aggregate amount of Securities which have been issued and
sold by the Company will not exceed the amount of Securities
registered under the Registration Statement (as defined in the
Agency Agreement). Such confirmation shall constitute a
Company Order to the Trustee for the authentication of such
Certificated Note and shall be deemed to satisfy the
requirements for the delivery of the Board Resolution and
Officers' Certificates set forth in the third paragraph of
Section 303 of the Indenture.
C. The Company will deliver to the Trustee a
pre-printed four-ply packet for such Certificated Note, which
packet will contain the following documents in forms that have
been approved by the Company, the Agents and the Trustee:
1. Certificated Note with customer
confirmation.
2. Stub One - For Trustee.
3. Stub Two - For Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such
Certificated Note and will authenticate such Certificated Note
and deliver it (with the confirmation) and Stubs One and Two
to the Presenting Agent, and the Presenting Agent will
acknowledge receipt of the Note by stamping or otherwise
marking Stub One and returning it to the Trustee. Such
delivery will be made only against such acknowledgment of
receipt and evidence that instructions have been given by the
Presenting Agent for payment to the account of the Company at
The Bank of New York in funds available for immediate use, of
an amount equal to the price of such Certificated Note less
the Presenting Agent's commission. In the event that the
instructions given by the Presenting Agent for payment to the
account of the Company are revoked, the Company will as
promptly as possible wire transfer to the account of the
Presenting Agent an amount of immediately available funds
equal to the amount of such payment made.
E. The Presenting Agent will deliver
such Certificated Note (with the confirmation) to the customer
or the customer's trust bank against payment in immediately
payable funds. The Presenting Agent will obtain the
acknowledgement of receipt of such Certificated Note by
retaining Stub Two.
F. The Trustee will send Stub Three to
the Company by first-class mail.
SETTLEMENT
PROCEDURES
TIMETABLE: For orders of Certificated Notes solicited by any Agent, as
agent, and accepted by the Company, Settlement Procedures "A"
through "F" set forth above shall be completed on or before
the respective times (New York City time) set forth below:
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54
Settlement
Procedure Time
---------- ----
A 2:00 P.M. on the Business Day before
settlement
B-C 3:00 P.M. on the Business Day before
settlement
D 2:15 P.M. on Settlement Date
E 3:00 P.M. on Settlement Date
F 5:00 P.M. on Settlement Date
FAILURE
TO SETTLE: If a purchaser fails to accept delivery of and make payment
for any Certificated Note, the Presenting Agent will notify
the Company and the Trustee by telephone and return such
Certificated Note to the Trustee. Upon receipt of such notice,
the Company will immediately wire transfer to the account of
the Presenting Agent an amount equal to the amount previously
credited to the account of Company in respect of such
Certificated Note. Such wire transfer will be made on the
Settlement Date, if possible, and in any event not later than
the Business Day following the Settlement Date. If the failure
shall have occurred for any reason other than a default by the
Presenting Agent in the performance of its obligations
hereunder and under the Agency Agreement, then the Company
will reimburse the Presenting Agent or the Trustee, as
appropriate, on an equitable basis for its loss of the use of
the funds during the period when they were credited to the
account of the Company. Immediately upon receipt of the
Certificated Note in respect of which such failure occurred,
the Trustee will cancel such Certificated Note in accordance
with the Indenture and so advise the Company, and will make
appropriate entries in its records.
TRUSTEE NOT TO
RISK FUNDS: Nothing herein shall be deemed to require the Trustee
to risk or expend its own funds in connection with any payment
to the Company, the Agents or the purchaser, it being
understood by all parties that payments made by the Trustee to
the Company, the Agents or the purchaser shall be made only to
the extent that funds are provided to the Trustee for such
purpose.
AUTHENTICITY
OF SIGNATURES: The Company will cause the Trustee to furnish to the Agents
from time to time with the specimen signatures of each of the
Trustee's officers, employees or agents who has been
authorized by the Trustee to authenticate Certificated Notes,
but neither the Trustee nor any Agent will have any obligation
or liability to the Company or the Trustee in respect of the
authenticity of the signature of any officer, employee or
agent of the Company or the Trustee on any Certificated Note.
PAYMENT OF
EXPENSES: Each Agent shall forward to the Company, on a monthly basis, a
statement of the out-of- pocket expenses incurred by such
Agent during that month that are reimbursable to it pursuant
to the terms of the Agency Agreement. The Company will remit
payment to the Agents currently on a monthly basis.
ADVERTISING
COSTS: The Company will determine with the Agents the amount of
advertising that may be appropriate in soliciting orders to
purchase the Certificated Notes. Advertising expenses will be
paid by the Company.
PERIODIC STATE-
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55
MENTS FROM
THE TRUSTEE: Upon the request of the Company, the Trustee will send to the
Company a statement setting forth the principal amount of
Certificated Notes outstanding as of that date.
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