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As filed with the Securities and Exchange Commission on November 7, 1995
Registration No. 33-63523
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________
PRE-EFFECTIVE
AMENDMENT
NUMBER ONE
TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
___________________________
IRT PROPERTY COMPANY
(Exact name of registrant as specified in its charter)
GEORGIA 58-1366611
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
200 Galleria Parkway, Suite 1400
Atlanta, GA 30339
(770) 955-4406
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Lee A. Harris
Senior Vice President and Secretary
200 Galleria Parkway, Suite 1400
Atlanta, GA 30339
(770) 955-4406
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
___________________________
Copies To:
Frank M. Conner III
Alston & Bird
601 Pennsylvania Avenue, N.W.
North Building, Suite 250
Washington, D.C. 20004-2601
(202) 508-3300
___________________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM
TIME TO TIME AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE AS DETERMINED
BY MARKET CONDITIONS AND OTHER FACTORS.
___________________________
If the only securities being registered on this Form are being offered
pursuant to dividend or interest re-investment plans, please check the
following box. ____
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest re-investment plans, check the following box. X
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act Registration Statement number of the
earlier effective Registration Statement for the same offering. ______
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act Registration Statement number of the earlier effective
Registration Statement for the same offering. _____
If delivery of the Prospectus is expected to be made pursuant to Rule
434, please check the following box. ___
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____________________________________
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
________________________________________________________________________________
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION
DATED NOVEMBER 7, 1995
PROSPECTUS
IRT PROPERTY COMPANY
$200,000,000
DEBT SECURITIES AND COMMON STOCK
__________________________
IRT Property Company (the "Company") may from time to time issue, in
one or more series, its (i) unsecured senior or subordinated debt securities
(the "Debt Securities") and (ii) shares of Common Stock, $1 par value ("Common
Stock"), having an aggregate initial public offering price not to exceed
$200,000,000 (or its equivalent in any other currency or composite currency
based on the exchange rate at the time of sale) in amounts, at prices and on
terms to be determined at the time of offering. The Debt Securities and Common
Stock (collectively, the "Securities") may be offered, separately or together,
in separate series, in amounts, at prices and on terms to be set forth in a
supplement or supplements to this Prospectus ("Prospectus Supplement").
The Debt Securities will be direct unsecured obligations of the
Company and may be either senior debt securities ("Senior Securities") or
subordinated debt securities ("Subordinated Securities"). The Senior
Securities will rank equally with all other unsecured and unsubordinated
indebtedness of the Company. The Subordinated Securities will be subordinated
to all existing and future Senior Debt of the Company, as defined. See
"Description of Debt Securities."
The specific terms of the Securities in respect of which this
Prospectus is being delivered will be set forth in the applicable Prospectus
Supplement and will include, where applicable: (i) in the case of Debt
Securities, the specific title, aggregate principal amount, currency, form
(which may be registered or bearer, or certificated or global), authorized
denominations, maturity, rate (or manner of calculation thereof) and time of
payment of interest, terms for redemption at the option of the Company or
repayment at the option of the Holder, terms for sinking fund payments, terms
for conversion into Common Stock, additional covenants and any initial public
offering price; and (ii) in the case of Common Stock, any initial public
offering price. In addition, such specific terms may include limitations on
direct or beneficial ownership and restrictions on transfer of the Securities,
in each case including limitations as may be appropriate to preserve the status
of the Company as a real estate investment trust ("REIT") for federal income tax
purposes.
The applicable Prospectus Supplement will also contain information,
where applicable, about certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Securities
covered by such Prospectus Supplement.
The Securities may be offered directly by the Company, through agents
designated from time to time by the Company, or to or through underwriters or
dealers. If any agents or underwriters are involved in the sale of any of the
Securities, their names, and any applicable purchase price, fee, commission or
discount arrangement between or among them, will be set forth, or will be
calculable from the information set forth, in the applicable Prospectus
Supplement. See "Plan of Distribution." No Securities may be sold without
delivery of the applicable Prospectus Supplement or a term sheet describing the
method and terms of the offering of such series of Securities.
_________________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
_________________________________
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON
OR ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION
TO THE CONTRARY IS UNLAWFUL.
_________________________________
The date of this Prospectus is _______, 1995.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements and other information can be inspected and copied at the
Public Reference Section maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549; Chicago Regional Office, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661; and New York Regional Office, 7
World Trade Center, New York, New York 10048. In addition, the Common Stock is
listed on the New York Stock Exchange, Inc. ("NYSE") and similar information
about the Company can be inspected and copied at prescribed rates at the
offices of the NYSE, 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a registration statement on
Form S-3 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Securities being offered
hereby. For further information with respect to the Company and the Securities
offered hereby, reference is made to the Registration Statement and exhibits
thereto. Statements contained in this Prospectus as to the contents of any
contract or other documents are not necessarily complete, and in each instance,
reference is made to the copy of such contract or documents filed as an exhibit
to the Registration Statement, each such statement being qualified in all
respects by such reference.
______________________________________
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission (File
No. 1-7859) are incorporated in this Prospectus by reference and are made a
part hereof:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1994, as amended and restated under Form 10-K/A Amendment No. 1
filed September 28, 1995.
2. The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1995 and June 30, 1995.
3. The Company's Current Report on Form 8-K filed January 5, 1995
(date of event reported December 21, 1994), as amended by Form 8-K/A Amendment
No. 1 filed January 20, 1995 and Form 8-K/A Amendment No. 2 filed March 1, 1995.
4. The description of the Company Common Stock contained in the
Company's prospectus dated August 5, 1991 which constitutes a part of
Registration Statement No. 33-41301 filed with the Commission.
Each document filed subsequent to the date of this Prospectus pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to the
termination of the offering of all Securities to which this Prospectus relates
shall be deemed to be incorporated by reference in this Prospectus and shall be
a part hereof from the date of filing of such document.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement herein, in any
accompanying Prospectus Supplement relating to a specific offering of
Securities or in any other subsequently filed document that is also
incorporated or deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Prospectus or any accompanying Prospectus Supplement. Subject to the
foregoing, all information appearing in this Prospectus and each accompanying
Prospectus Supplement is qualified in its entirety by the information appearing
in the documents incorporated by reference.
________________________________________
Upon written or oral request of any person to whom a Prospectus is
delivered, the Company will provide, without charge, a copy of the documents
which have been incorporated by reference in this Prospectus. Requests for
such documents should be directed to Lee A. Harris, Senior Vice President and
Secretary, IRT Property Company, 200 Galleria Parkway, Suite 1400, Atlanta,
Georgia 30339, telephone (770) 955-4406.
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THE COMPANY
The Company, founded in 1969, is a self-administered and self-managed
equity REIT which invests primarily in neighborhood and community shopping
centers which are located in the Southeastern United States and are anchored by
supermarkets, drug stores and/or discount variety stores. As of June 30, 1995,
the Company owned 83 shopping centers comprising approximately 8.7 million
square feet of leasable space.
The Company conducts its property management and leasing activities
internally through its offices in Atlanta, Charlotte, Orlando, Fort Lauderdale
and New Orleans. The Company believes that this approach promotes efficiencies
in property maintenance, leasing, cost control and the identification of
expansion and redevelopment opportunities. The Company is and has been an
active redeveloper of properties and believes it can add significantly to
operating results and values by a continued emphasis on property enhancement.
The Company conducts its operations in order to qualify as a REIT
under the Internal Revenue Code of 1986, as amended (the "Code"). The
Company's principal executive offices are located at 200 Galleria Parkway,
Suite 1400, Atlanta, Georgia 30339, and its telephone number is (770) 955-4406.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement for
any offering of Securities, the Company intends to use the net proceeds from
the sale of Securities offered by the Company to repay debt (including
repayments of amounts drawn on lines of credit), improve, expand or redevelop
its properties, acquire or develop additional properties and for working
capital. Pending use for the foregoing purposes, such proceeds may be
invested in short-term, interest-bearing time or demand deposits with
financial institutions, cash items or qualified government securities.
CERTAIN RATIOS
The following table sets forth the Company's consolidated ratios of
earnings to fixed charges for the periods shown:
<TABLE>
<CAPTION>
Years Ended Six Months Ended
December 31, June 30,
---------------------------------------- -------------------
1990 1991 1992 1993 1994 1994 1995
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to
Fixed Charges .......... 2.07x 1.78x 1.99x 2.20x 1.58x 1.30x 1.86x
</TABLE>
The ratios of earnings to fixed charges were computed by dividing
earnings by fixed charges. For these purposes, earnings consist of income
before extraordinary items plus fixed charges. Fixed charges consist of
interest expense (including interest costs capitalized), amortization of debt
costs and the portion of rent expense representing an interest factor.
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DESCRIPTION OF DEBT SECURITIES
GENERAL
The Senior Securities are to be issued under an indenture (the "Senior
Indenture"), to be entered into between the Company and SunTrust Bank, Atlanta,
as Trustee, and the Subordinated Securities are to be issued under an indenture
(the "Subordinated Indenture"), also to be entered into between the Company and
SunTrust Bank, Atlanta, as Trustee. The term "Trustee" as used herein shall
refer to SunTrust Bank, Atlanta, or such other bank as the Company may appoint
as trustee pursuant to the terms of the applicable Indenture, in its or their
capacity as Trustee for the Senior Securities or the Subordinated Securities,
as appropriate. The forms of the Senior Indenture and the Subordinated
Indenture (being sometimes referred to herein collectively as the "Indentures"
and individually as an "Indenture") are filed as exhibits to the Registration
Statement. The Indentures are subject to and governed by the Trust Indenture
Act of 1939, as amended (the "TIA"), and may be supplemented from time to time
following execution. The statements made under this heading relating to the
Debt Securities and the Indentures are summaries of the provisions thereof and
do not purport to be complete and are qualified in their entirety by reference
to the Indentures and such Debt Securities. All section references below are
to sections of the Indentures and capitalized terms used but not defined herein
shall have the respective meanings set forth in the Indentures.
As of June 30, 1995, the Company had $84,905,000 aggregate principal
amount of 7.3% Convertible Subordinated Debentures outstanding due in 2003.
SunTrust Bank, Atlanta serves as the trustee under the indenture pursuant to
which such convertible subordinated debentures were issued.
TERMS
The Debt Securities will be direct, unsecured obligations of the
Company. The indebtedness represented by the Senior Securities will rank
equally with all other unsecured and unsubordinated indebtedness of the
Company. The indebtedness represented by the Subordinated Securities will be
subordinated in right of payment to the prior payment in full of the Senior
Debt of the Company as described under "Subordination."
Each Indenture provides that the Debt Securities may be issued without
limit as to aggregate principal amount, in one or more series, in each case as
established from time to time in, or pursuant to authority granted by, a
resolution of the Board of Directors of the Company or as established in one or
more indentures supplemental to such Indenture. Debt Securities may be issued
with terms different from those of Debt Securities previously issued; all Debt
Securities of one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the
Holders of the Debt Securities of such series, for issuances of additional Debt
Securities of such series (Section 301 of each Indenture).
Each Indenture provides that there may be more than one Trustee
thereunder, each with respect to one or more series of Debt Securities. Any
Trustee under an Indenture
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may resign or be removed with respect to one or more series of Debt Securities,
and a successor Trustee may be appointed to act with respect to such series
(Section 608 of each Indenture). In the event that two or more persons are
acting as Trustee with respect to different series of Debt Securities, each
such Trustee shall be a Trustee of a trust under the applicable Indenture
separate and apart from the trust administered by any other Trustee (Section
101 and Section 609 of each Indenture), and, except as otherwise indicated
herein, any action described herein to be taken by each Trustee may be taken by
each such Trustee with respect to, and only with respect to, the one or more
series of Debt Securities for which it is Trustee under the applicable
Indenture.
Reference is made to the applicable Prospectus Supplement relating to
the series of Debt Securities being offered for the specific terms thereof,
including, but not limited to:
(1) the title of such Debt Securities and whether such Debt
Securities are Senior Securities or Subordinated Securities;
(2) the aggregate principal amount of such Debt Securities and any
limit on such aggregate principal amount;
(3) the percentage of the principal amount at which such Debt
Securities will be issued and, if other than the principal
amount thereof, the portion of the principal amount thereof
payable upon declaration of acceleration of the maturity
thereof, or (if applicable) the portion of the principal amount
of such Debt Securities which is convertible into Capital
Stock (as defined in the Indentures) or the method by which
any such portion shall be determined;
(4) if convertible, any applicable limitations on the
ownership or transferability of the Common Stock into which
such Debt Securities are convertible including such
limitations in connection with the preservation of the
Company's status as a REIT;
(5) the date or dates, or the method for determining such date or
dates, on which the principal of such Debt Securities will be
payable and the amount of principal payable thereon;
(6) the rate or rates (which may be fixed or variable), or the
method by which such rate or rates shall be determined, at
which such Debt Securities will bear interest, if any;
(7) the date or dates, or the method for determining such date or
dates, from which any such interest will accrue, the Interest
Payment Dates on which any such interest will be payable, the
Regular Record Dates if any, for such interest payable on any
Registered Security on any Interest Payment Dates, or the
method by which such dates shall be determined, the Persons to
whom such interest shall be payable, and the basis upon which
interest shall be calculated if other than that of a 360-day
year consisting of twelve 30-day months;
(8) the place or places where the principal of (and premium or
Make-Whole Amount, if any) interest, if any, on and
Additional Amounts, if any, payable in respect of such Debt
Securities will be payable, where such Debt Securities may be
surrendered for conversion or registration of transfer or
exchange and where notices or demands to or upon the Company
in respect of such Debt Securities and the applicable
Indenture may be served;
(9) the period or periods within which, the price or prices
(including premium or Make-Whole Amount, if any) at which, the
currency or currencies, currency unit or units or composite
currency or currencies in which and the other terms and
conditions upon which such Debt Securities may be redeemed,
as a whole or in part, at the option of the Company if the
Company is to have such an option;
(10) the obligation, if any, of the Company to redeem, repay or
purchase such Debt Securities pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and
the period or periods within which, the date or dates on which,
the price or prices at which, the currency or currencies,
currency unit or units or composite currency or currencies in
which and the other terms and conditions upon which such Debt
Securities will be redeemed, repaid or purchased, as a whole
or in part, pursuant to such obligation;
(11) if other than United States dollars, the currency or currencies
in which such Debt Securities are denominated and payable,
which may be a foreign currency or units of two or more foreign
currencies or a composite currency or currencies, and the
terms and conditions relating thereto;
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(12) whether the amount of payment of principal of (and premium or
Make-Whole Amount, if any) or interest, if any, on such Debt
Securities may be determined with reference to an index,
formula or other method (which index, formula or method may,
but need not be, based on a currency, currencies, currency
unit or units, composite currency or currencies, commodities,
equity indices or other indices) and the manner in which such
amounts shall be determined;
(13) whether the principal of (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts, if any, on such Debt
Securities are to be payable, at the election of the Company
or a Holder thereof, in a currency or currencies, currency
unit or units or composite currency or currencies other than
that in which such Debt Securities are denominated or stated
to be payable, the period or periods within which, and the
terms and conditions upon which, such election may be made,
and the time and manner of, and identity of the exchange rate
agent with responsibility for, determining the exchange rate
between the currency or currencies, currency unit or units or
composite currency or currencies in which such Debt Securities
are denominated or stated to be payable and the currency or
currencies, currency unit or units or composite currency or
currencies in which such Debt Securities are to be payable;
(14) provisions, if any, granting special rights to the Holders of
such Debt Securities upon the occurrence of such events as may
be specified;
(15) any addition to, modifications of or deletions from the terms
of such Debt Securities with respect to the Events of Default
or covenants set forth in the applicable Indenture;
(16) whether such Debt Securities will be issued in certificated or
book-entry form and terms and conditions relating thereto;
(17) whether such Debt Securities will be in registered or bearer
form and terms and conditions relating thereto, and if in
registered form, the denominations thereof if other than
$1,000 and any integral multiple thereof and, if in bearer
form, the denominations thereof if other than $5,000;
(18) the applicability, if any, of the defeasance and covenant
defeasance provisions of the applicable Indenture;
(19) the terms, if any, upon which such Debt Securities may be
convertible into Capital Stock of the Company and the terms and
conditions upon which such conversion will be effected,
including, without limitation, the initial conversion price or
rate and the conversion period;
(20) whether and under what circumstances the Company will pay
Additional Amounts, if any, as contemplated in the applicable
Indenture on such Debt Securities to any Holder who is not a
United States person in respect of any tax, assessment or
governmental charge and, if so, whether the Company will have
the option to redeem such Debt Securities in lieu of paying
such Additional Amounts (and the terms of any such option); and
(21) any other terms of such Debt Securities not inconsistent with
the provisions of the applicable Indenture (Section 301 of
each Indenture).
The Debt Securities may provide for less than the entire principal
amount thereof to be payable upon declaration of acceleration of the maturity
thereof ("Original Issue Discount Securities") (Section 502 of each Indenture).
Any special U.S. federal income tax, accounting and other considerations
applicable to Original Issue Discount Securities will be described in the
applicable Prospectus Supplement.
DENOMINATIONS, INTEREST, REGISTRATION AND TRANSFER
Unless otherwise described in the applicable Prospectus Supplement,
the Debt Securities of any series issued in registered form will be issuable in
denominations of $1,000 and integral multiples thereof. Unless otherwise
described in the applicable Prospectus Supplement, the Debt Securities of any
series issued in bearer form will be issuable in denominations of $5,000
(Section 302 of each Indenture).
Unless otherwise specified in the applicable Prospectus Supplement,
the principal of (and applicable premium or Make-Whole Amount, if any) and
interest, if any, on any series of Debt Securities will be payable at the
corporate trust office of the Trustee, initially located at 58 Edgewood Ave.,
Room 400, Atlanta, Georgia 30303 in the case of each
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of the Senior Securities and the Subordinated Securities, provided that, at the
option of the Company, payment of interest may be made by check mailed to the
address of the Person entitled thereto as it appears in the Security Register
for such series or by wire transfer of funds to such Person at an account
maintained within the United States (Sections 301, 305, 307 and 1002 of each
Indenture).
Any interest not punctually paid or duly provided for on any Interest
Payment Date with respect to a Debt Security ("Defaulted Interest") will
forthwith cease to be payable to the Holder on the applicable Regular Record
Date and may either be paid to the person in whose name such Debt Security is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
applicable Trustee, notice whereof shall be mailed to each Holder of such Debt
Security not less than 10 days prior to such Special Record Date, or may be
paid at any time in any other lawful manner, all as more completely described
in the applicable Indenture (Section 307 of each Indenture).
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for
other Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations upon surrender of such
Debt Securities at the corporate trust office of the applicable Trustee
referred to above. In addition, subject to certain limitations imposed upon
Debt Securities issued in book-entry form, the Debt Securities of any series
may be surrendered for conversion or registration of transfer or exchange at
the corporate trust office of the applicable Trustee referred to above. Every
Debt Security surrendered for conversion, registration of transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer. No
service charge will be made for any registration of transfer or exchange of any
Debt Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith
(Section 305 of each Indenture). If the applicable Prospectus Supplement
refers to any transfer agent (in addition to the applicable Trustee) initially
designated by the Company with respect to any series of Debt Securities, the
Company may at any time rescind the designation of any such transfer agent or
approve a change in the location through which any such transfer agent acts,
except that the Company will be required to maintain a transfer agent in each
Place of Payment for such series. The Company may at any time designate
additional transfer agents with respect to any series of Debt Securities
(Section 1002 of each Indenture).
Neither the Company nor any Trustee shall be required to: (i) issue,
register the transfer of or exchange Debt Securities of any series during a
period beginning at the opening of business 15 days before any selection of
Debt Securities of that series to be redeemed and ending at the close of
business on the day of mailing or publication of the relevant notice of
redemption; (ii) register the transfer of or exchange any Debt Security, or
portion thereof, called for redemption, except the unredeemed portion of any
Debt Security being redeemed in part; (iii) exchange any Bearer Security
selected for redemption, except that such a Bearer Security may be exchanged
for a Registered Security of that series and like tenor, provided that such
Registered Security shall be simultaneously surrendered for redemption; or (iv)
issue, register the transfer of or exchange any Debt Security that has been
surrendered for repayment at the option of the Holder, except the portion, if
any, of such Debt Security not to be so repaid (Section 305 of each Indenture).
MERGER, CONSOLIDATION OR SALE
The Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into, any other
corporation or trust or entity provided that: (i) either the Company shall be
the continuing entity, or the successor entity (if other than the Company)
formed by or resulting from any such consolidation or merger or which shall
have received the transfer of such assets shall expressly assume payment of the
principal of (and premium or Make-Whole Amount, if any) and interest (including
any Additional Amounts), if any, on all of the Debt Securities and the due and
punctual performance and observance of all of the covenants and conditions
contained in each Indenture; (ii) immediately after giving effect to such
transaction and treating any indebtedness that becomes an obligation of the
Company or any Subsidiary as a result thereof as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of Default
under the Indenture, and no event which, after notice or the lapse of time, or
both, would become such an Event of Default, shall have occurred and be
continuing; and (iii) an officers' certificate and legal opinion covering such
conditions shall be delivered to the Trustee (Sections 801 and 803 of each
Indenture).
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CERTAIN COVENANTS
Existence. Except as permitted under "Merger, Consolidation or Sale,"
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its legal existence, rights (charter and
statutory) and franchises; provided, however, that the Company shall not be
required to preserve any right or franchise if it determines that the
preservation thereof is no longer desirable in the conduct of its business
(Section 1005 of each Indenture).
Maintenance of Properties. The Company will cause all of its material
properties used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that the Company and its
Subsidiaries shall not be prevented from selling or otherwise disposing of
their properties in the ordinary course of business (Section 1006 of each
Indenture).
Insurance. The Company will keep, and will cause each of its
Subsidiaries to keep, all of its insurable properties insured against loss or
damage in an amount at least equal to their then full insurable value with
financially sound and acceptable insurance companies (Section 1007 of each
Indenture).
Payment of Taxes and Other Claims. The Company will pay or discharge,
or cause to be paid or discharged, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges levied or imposed upon it or
any Subsidiary or upon the income, profits or property of the Company or any
Subsidiary and (ii) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings (Section 1008 of each Indenture).
Provision of Financial Information. Whether or not the Company is
subject to Section 13 or 15(d) of the Exchange Act, the Company will, within 15
days of each of the respective dates by which the Company would have been
required to file annual reports, quarterly reports and other documents with the
Commission pursuant to such Section 13 and 15(d) if the Company were so
subject, (i) transmit by mail to all Holders of Debt Securities, as their names
and addresses appear in the Security Register, without cost to such Holders,
copies of the annual reports and quarterly reports that the Company would have
been required to file with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act if the Company were subject to such Sections, (ii) file with
the applicable Trustee copies of the annual reports, quarterly reports and
other documents that the Company would have been required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Company
were subject to such Sections and (iii) promptly upon written request and
payment of the reasonable cost of duplication and delivery, supply copies of
such documents to any prospective Holder (Section 1009 of each Indenture).
Waiver of Certain Covenants. The Company may omit to comply with any
term, provision or condition of the foregoing covenants, and with any other
term, provision or condition with respect to the Debt Securities of any series
specified in Section 301 of the Indentures (except any such term, provision or
condition which could not be amended without the consent of all Holders of Debt
Securities of such series), if before or after the time for such compliance the
Holders of at least a majority in principal amount of all outstanding Debt
Securities of such series, by Act of such Holders, either waive such compliance
in such instance or generally waive compliance with such convenant or condition
except to the extent so expressly waived, and until such waiver shall become
effective, the obligations of the Company and the duties of the Truestee in
respect of any such term, provision or condition shall remain in full force and
effect (Section 1012 of each Indenture).
Additional Covenants. Any additional covenants with respect to any
series of Debt Securities will be set forth in the Prospectus Supplement
relating thereto.
EVENTS OF DEFAULT, NOTICE AND WAIVER
Each Indenture provides that the following events are "Events of
Default" with respect to any series of Debt Securities issued thereunder: (i)
default for 30 days in the payment of any installment of interest or Additional
Amounts, if any, payable on any Debt Security of such series; (ii) default in
the payment of the principal of (or premium or Make-Whole Amount, if any, on)
any Debt Security of such series at its Maturity; (iii) default in making any
sinking fund payment as required for any Debt Security of such series; (iv)
default in the performance or breach of any other covenant of the Company
contained in the Indenture (other than a covenant added to the Indenture solely
for the benefit of a series of Debt Securities issued thereunder other than
such series), continued for 60 days after written notice as provided in the
applicable Indenture; (v) default under a bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company (or by any
Subsidiary, the repayment of which the Company has guaranteed or for which the
Company is directly responsible or liable as obligor or guarantor) having a
principal amount outstanding in excess of $10,000,000, (other than indebtedness
which is non-recourse to the Company or the Subsidiaries), whether such
indebtedness now exists or shall hereafter be created, which default shall have
resulted in such indebtedness becoming or being declared due and payable prior
to the date on which it would otherwise have become due and payable, without
such
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acceleration having been rescinded or annulled within 30 days after
written notice to the Company as provided in the Indenture; (vi) the entry by a
court of competent jurisdiction of one or more judgments, orders or decrees
against the Company or any Subsidiary in an aggregate amount (excluding amounts
fully covered by insurance) in excess of $10,000,000 and such judgments, orders
or decrees remain undischarged, unstayed and unsatisfied in an aggregate amount
(excluding amounts fully covered by insurance) in excess of $10,000,000 for a
period of 60 consecutive days; (vii) certain events of bankruptcy, insolvency
or reorganization, or court appointment of a receiver, liquidator or trustee of
the Company or any Significant Subsidiary or for all or substantially all of
the property of either, and (viii) any other Event of Default provided with
respect to a particular series of Debt Securities (Section 501 of each
Indenture). The term "Significant Subsidiary" means each significant
subsidiary (as defined in Regulation S-X promulgated under the Securities Act)
of the Company.
If an Event of Default under an Indenture with respect to Debt
Securities of any series at the time Outstanding occurs and is continuing, then
in every such case the applicable Trustee or the Holders of not less than 25%
in principal amount of the Outstanding Debt Securities of that series may
declare the principal amount (or, if the Debt Securities of that series are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal amount as may be specified in the terms thereof) of and premium or
Make-Whole Amount, if any, on all of the Debt Securities of that series to be
due and payable immediately by written notice thereof to the Company (and to
the applicable Trustee if given by the Holders). However, at any time after
such a declaration of acceleration with respect to Debt Securities of such
series (or of all Debt Securities then Outstanding under the applicable
Indenture, as the case may be) has been made, but before a judgment or decree
for payment of the money due has been obtained by the applicable Trustee, the
Holders of not less than a majority in principal amount of the Outstanding Debt
Securities of such series (or of all Debt Securities then Outstanding under the
applicable Indenture, as the case may be) may rescind and annul such
declaration and its consequences if (i) the Company shall have deposited with
the applicable Trustee all required payments of the principal of (and premium
or Make-Whole Amount, if any) and interest, and any Additional Amounts, on the
Debt Securities of such series (or of all Debt Securities then Outstanding
under the applicable Indenture, as the case may be), plus certain fees,
expenses, disbursements and advances of the applicable Trustee and (ii) all
Events of Default, other than the nonpayment of accelerated principal (or a
specified portion thereof and the premium or Make-Whole Amount, if any) or
interest, with respect to Debt Securities of such series (or of all Debt
Securities then Outstanding under the applicable Indenture, as the case may be)
have been cured or waived as provided in the Indenture (Section 502 of each
Indenture). Each Indenture also provides that the Holders of not less than a
majority in principal amount of the Outstanding Debt Securities of any series
(or of all Debt Securities then Outstanding under the applicable Indenture, as
the case may be) may waive any past default with respect to such series and its
consequences, except a default (x) in the payment of principal of (or premium
or Make-Whole Amount, if any) or interest or Additional Amounts, if any, on any
Debt Security of such series or (y) in respect of a covenant or provision
contained in the applicable Indenture that cannot be modified or amended
without the consent of the Holders of each Outstanding Debt Security affected
thereby (Section 513 of each Indenture).
The Trustee is required to give notice to the Holders of Debt
Securities within 90 days of a default under the applicable Indenture unless
such default shall have been cured or waived; provided, however, that such
Trustee may withhold notice to the Holders of any series of Debt Securities of
any default with respect to such series (except a default in the payment of the
principal of (or premium or Make-Whole Amount, if any) or interest or
Additional Amounts, if any, on any Debt Security of such series or in the
payment of any sinking fund installment in respect of any Debt Security of such
series) if the Responsible Officers of such Trustee consider such withholding
to be in the interest of such Holders (Section 601 of each Indenture).
Each Indenture provides that no Holder of Debt Securities of any
series may institute any proceedings, judicial or otherwise, with respect to
such Indenture or for any remedy thereunder, except in the case of failure of
the applicable Trustee, for 60 days, to act after it has received a written
request to institute proceedings in respect of an Event of Default from the
Holders of not less than 25% in principal amount of the Outstanding Debt
Securities of such series, as well as an offer of indemnity reasonably
satisfactory to it (Section 507 of each Indenture). This provision will not
prevent, however, any Holder of Debt Securities from instituting suit for the
enforcement of payment of the principal of (and premium or Make-Whole Amount,
if any) and interest if any, on or Additional Amounts, if any, payable with
respect to such Debt Securities at the respective due dates thereof (Section
508 of each Indenture).
Subject to provisions in each Indenture relating to its duties in case
of default, the Trustee is under an obligation to exercise any of its rights or
powers under such Indenture at the request or direction of any Holders of any
series of Debt Securities then Outstanding under such Indenture, unless such
Holders shall have offered to the Trustee thereunder reasonable security or
indemnity (Section 602 of each Indenture). The Holders of not less than a
majority in principal amount of the Outstanding Debt Securities of any series
(or of all Debt Securities then Outstanding under each Indenture, as the case
may
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be) shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the applicable Trustee, or of exercising
any trust or power conferred upon such Trustee. However, the Trustee may
refuse to follow any direction which is in conflict with any law or the
applicable Indenture, which may involve such Trustee in personal liability or
which may be unduly prejudicial to the Holders of Debt Securities of such
series not joining therein (Section 512 of each Indenture).
Within 120 days after the close of each fiscal year, the Company must
deliver to each Trustee a certificate, signed by one of several specified
officers, stating whether or not such officer has knowledge of any default
under the applicable Indenture and, if so, specifying each such default and the
nature and status thereof (Section 1010 of each Indenture).
MODIFICATION OF THE INDENTURES
Modification and amendment of an Indenture may be made only with the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Debt Securities issued under such Indenture which are affected by
such modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each such Debt Security
affected thereby, (i) change the Stated Maturity of the principal of (or
Premium or Make-Whole Amount, if any), or any installment of principal of or
interest or Additional Amounts, if any, payable on, any such Debt Security,
(ii) reduce the principal amount of, or the rate or amount of interest on, or
any premium or Make-Whole Amount, payable on redemption of or any Additional
Amount, if any, payable with respect to any such Debt Security, or reduce the
amount of principal of an Original Issue Discount Security that would be due
and payable upon declaration of acceleration of the maturity thereof or would
be provable in bankruptcy, or adversely affect any right of repayment of the
Holder of any such Debt Security, (iii) change the Place of Payment, or the
coin or currency, for payment of principal of (and Premium or Make-Whole
Amount, if any), or interest on, or any Additional Amounts payable with respect
to, any such Debt Security, (iv) impair the right to institute suit for the
enforcement of any payment on or with respect to any such Debt Security, (v)
reduce the percentage of the Holders of outstanding Debt Securities of any
series necessary to modify or amend the applicable Indenture, to waive
compliance with certain provisions thereof or certain defaults and consequences
thereunder or to reduce the quorum or voting requirements set forth in the
applicable Indenture, or (vi) modify any of the foregoing provisions or any of
the provisions relating to the waiver of certain past defaults or certain
covenants, except to increase the required percentage to effect such action or
to provide that certain other provisions may not be modified or waived without
the consent of the Holder of such Debt Security (Section 902 of each
Indenture).
The Holders of not less than a majority in principal amount of
Outstanding Debt Securities issued under either Indenture have the right to
waive compliance by the Company with certain covenants in such Indenture
(Section 1012 of each Indenture).
Modifications and amendments of an Indenture may be made by the Company
and the respective Trustee thereunder without the consent of any Holder of Debt
Securities for any of the following purposes: (i) to evidence the succession
of another Person to the Company as obligor under such Indenture; (ii) to add
to the covenants of the Company for the benefit of the Holders of all or any
series of Debt Securities or to surrender any right or power conferred upon the
Company in such Indenture; (iii) to add Events of Default for the benefit of
the Holders of all or any series of Debt Securities; (iv) to add or change any
provisions of an Indenture to facilitate the issuance of, or to liberalize
certain terms of, Debt Securities in bearer form, or to permit or facilitate
the issuance of Debt Securities in uncertificated form, provided that such
action shall not adversely affect the interests of the Holders of the Debt
Securities of any series in any material respect; (v) to add, change or
eliminate any provisions of an Indenture, provided that any such addition,
change or elimination shall become effective only when there are no Outstanding
Debt Securities of any series created prior thereto which are entitled to the
benefit of such provision; (vi) to secure the Debt Securities; (vii) to
establish the form or terms of Debt Securities of any series, including the
provisions and procedures, if applicable, for the conversion of such Debt
Securities into Capital Stock of the Company; (viii) to provide for the
acceptance or appointment of a successor Trustee or facilitate the
administration of the trusts under an Indenture by more than one Trustee; (ix)
to cure any ambiguity, defect or inconsistency in an Indenture, provided that
such action shall not adversely affect the interests of Holders of Debt
Securities of any series issued under such Indenture; (x) to close an Indenture
with respect to the authentication and delivery of additional series of Debt
Securities or to qualify, or maintain qualification of, an Indenture under the
TIA; or (xi) to supplement any of the provisions of an Indenture to the extent
necessary to permit or facilitate defeasance and discharge of any series of
such Debt Securities, provided that such action shall not adversely affect the
interests of the Holders of the Debt Securities of any series in any material
respect (Section 901 of each Indenture).
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SUBORDINATION
Upon any distribution to creditors of the Company in a liquidation,
dissolution, bankruptcy, insolvency or reorganization, the payment of the
principal of and interest on the Subordinated Securities will be subordinated
to the extent provided in the Subordinated Indenture in right of payment to the
prior payment in full of all Senior Debt (Sections 1601 and 1602 of the
Subordinated Indenture), but the obligation of the Company to make payment of
the principal of and interest on the Subordinated Securities will not otherwise
be affected (Section 1608 of the Subordinated Indenture). No payment of
principal or interest may be made on the Subordinated Securities at any time if
a default on Senior Debt exists that permits the holders of such Senior Debt to
accelerate its maturity and the default is the subject of judicial proceedings
or the Company receives notice of the default (Section 1603 of the Subordinated
Indenture). The Company may resume payments on the Subordinated Securities
when the default is cured or waived, or 120 days pass after the notice is given
if the default is not the subject of judicial proceedings, if the subordination
provisions of the Subordinated Indenture otherwise permit payment at that time
(Section 1603 of the Subordinated Indenture). After all Senior Debt is paid in
full and until the Subordinated Securities are paid in full, Holders will be
subrogated to the rights of holders of Senior Debt to the extent that
distributions otherwise payable to Holders have been applied to the payment of
Senior Debt (Section 1607 of the Subordinated Indenture). By reason of such
subordination, in the event of a distribution of assets upon insolvency,
certain general creditors of the Company may recover more, ratably, than
Holders of the Subordinated Securities.
Senior Debt is defined in the Subordinated Indenture as the principal,
premium, if any, unpaid interest (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization relating to the
Company whether or not a claim for post-filing interest is allowed in such
proceeding), fees, charges, expenses, reimbursement and indemnification
obligations, and all other amounts payable under or in respect of the following
indebtedness of the Company for money borrowed, whether any such indebtedness
exists as of the date of the Subordinated Indenture or is created, incurred,
assumed or guaranteed after such date:
(1) any debt (i) for money borrowed, or (ii) evidenced by a bond,
note, debenture, or similar instrument (including purchase money
obligations) given in connection with the acquisition of any business,
property or assets, whether by purchase, merger, consolidation or
otherwise, but shall not include any account payable or other obligation
created or assumed in the ordinary course of business in connection with
the obtaining of materials or services, or (iii) which is a direct or
indirect obligation which arises as a result of banker's acceptances or
bank letters of credit issued to secure obligations of the Company, or to
secure the payment of revenue bonds issued for the benefit of the Company,
whether contingent or otherwise;
(2) any debt of others described in the preceding clause (1) which
the Company has guaranteed or for which it is otherwise liable;
(3) the obligation of the Company as lessee under any lease of
property which is reflected on the Company's balance sheet as a capitalized
lease; and
(4) any deferral, amendment, renewal, extension, supplement or
refunding of any liability of the kind described in any of the preceding
clauses (1), (2), and (3);
provided, however, that, in computing the indebtedness of the Company, there
shall be excluded any particular indebtedness if, upon or prior to the maturity
thereof, there shall have been deposited with a depository in trust money (or
evidence of indebtedness if permitted by the instrument creating such
indebtedness) in the necessary amount to pay, redeem or satisfy such
indebtedness as it becomes due, and the amount so deposited shall not be
included in any computation of the assets of the Company provided, further,
that in computing the indebtedness of the Company hereunder, there shall be
excluded (i) any such indebtedness, obligation or liability
referred to in clauses (1) through (4) above as to which, in the instrument
creating or evidencing the same or pursuant to which the same is outstanding,
it is provided that such indebtedness, obligation or liability is not superior
in right of payment to the Subordinated Securities, or ranks pari passu with the
Subordinated Securities, (ii) any such indebtedness, obligation or liability
which is subordinated to indebtedness of the Company to substantially the same
extent as or to a greater extent than the Subordinated Securities are
subordinated and (iii) the Subordinated Securities. (Section 101 of the
Subordinated Indenture). At June 30, 1995, Senior Debt aggregated
approximately $137.6 million. There are no restrictions in the Subordinated
Indenture upon the creation of additional Senior Debt or other indebtedness.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Under each Indenture, the Company may discharge certain obligations to
Holders of any series of Debt Securities issued thereunder that have not
already been delivered to the applicable Trustee for cancellation and that
either have become due and payable or will become due and payable within one
year (or scheduled for redemption within one year) by irrevocably depositing
with the applicable Trustee, in trust, funds in such currency or currencies,
currency unit or units or composite currency or currencies in which such Debt
Securities are payable in an amount sufficient to pay the entire indebtedness
on such Debt Securities in respect of principal (and premium or Make-Whole
Amount, if any) and interest and any Additional Amounts payable to the date of
such deposit (if such Debt Securities have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be (Section 401 of each
Indenture).
Each Indenture provides that, if the provisions of Article Fourteen
thereof are made applicable to the Debt Securities of or within any series
pursuant to Section 301 of such Indenture, the Company may elect either (i) to
defease and be discharged from any and all obligations with respect to such
Debt Securities (except for the obligation to pay Additional Amounts, if any,
upon the occurrence of certain events of tax, assessment or governmental charge
with respect to payments on such Debt Securities and the obligations to
register the transfer or exchange of such Debt Securities, to replace
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temporary or mutilated, destroyed, lost or stolen Debt Securities, to maintain
an office or agency in respect of such Debt Securities and to hold moneys for
payment in trust) ("defeasance") (Section 1402 of each Indenture) or (ii) to be
released from its obligations with respect to such Debt Securities under
Sections of each Indenture described under "Certain Covenants" or, if provided
pursuant to Section 301 of each Indenture, its obligations with respect to any
other covenant, and any omission to comply with such obligations shall not
constitute a default or an Event of Default with respect to such Debt
Securities ("covenant defeasance") (Section 1403 of each Indenture), in either
case upon the irrevocable deposit by the Company with the applicable Trustee,
in trust, of an amount, in such currency or currencies, currency unit or units
or composite currency or currencies in which such Debt Securities are payable
at Stated Maturity, or Government Obligations (as defined below), or both,
applicable to such Debt Securities which through the scheduled payment of
principal and interest in accordance with their terms will provide money in an
amount sufficient to pay the principal of (and premium or Make-Whole Amount, if
any) and interest and any Additional Amounts on such Debt Securities, and any
mandatory sinking fund or analogous payments thereon, on the scheduled due
dates therefor.
Such a trust may only be established if, among other things, the
Company has delivered to the applicable Trustee an Opinion of Counsel (as
specified in each Indenture) to the effect that the Holders of such Debt
Securities will not recognize income, gain or loss for United States federal
income tax purposes as a result of such defeasance or covenant defeasance and
will be subject to United States federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
defeasance or covenant defeasance had not occurred, and such Opinion of
Counsel, in the case of defeasance, must refer to and be based upon a ruling of
the Internal Revenue Service or a change in applicable United States federal
income tax laws occurring after the date of such Indenture (Section 1404 of
each Indenture).
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Debt Securities of a particular series are
payable, for the payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or the government which issued
the Foreign Currency in which the Debt Securities of such series are payable,
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, which, in
either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt (Section 101 of each
Indenture).
Unless otherwise provided in the applicable Prospectus Supplement, if
after the Company has deposited funds and/or Government Obligations to effect
defeasance or covenant defeasance with respect to Debt Securities of any
series, (i) the Holder of a Debt Security of such series is entitled to, and
does, elect pursuant to Section 301 of either Indenture or the terms of such
Debt Security to receive payment in a currency, currency unit or composite
currency other than that in which such deposit has been made in respect of such
Debt Security, or (ii) a Conversion Event (as defined below) occurs in respect
of the currency, currency unit or composite currency in which such deposit has
been made, the indebtedness represented by such Debt Security shall be deemed
to have been, and will be, fully discharged and satisfied through the payment
of the principal of (and premium or Make-Whole Amount, if any) and interest and
any Additional Amounts on such Debt Security as they become due out of the
proceeds yielded by converting the amount so deposited in respect of such Debt
Security into the currency, currency unit or composite currency in which such
Debt Security becomes payable as a result of such election or such cessation of
usage based on the applicable market exchange rate (Section 1405 of each
Indenture).
"Conversion Event" means the cessation of use of (i) a currency,
currency unit or composite currency issued by the government of one or more
countries other than the United States (other than the European Currency Unit
("ECU") or other currency unit) both by the government of the country that
issued such currency and for the settlement of transactions by a central bank
or other public institutions of or within the international banking community,
(ii) the ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities or
(iii) any currency unit or composite currency other than the ECU for the
purposes for which it was established (Section 101 of each Indenture). Unless
otherwise provided in the applicable Prospectus Supplement, all payments of
principal of (and premium or Make-
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Whole Amount, if any) and interest and any Additional Amounts on any Debt
Security that is payable in a Foreign Currency that ceases to be used by its
government of issuance shall be made in United States dollars.
In the event the Company effects covenant defeasance with respect to
any Debt Securities and such Debt Securities are declared due and payable
because of the occurrence of any Event of Default other than the Event of
Default descried in clause (iv) under "Events of Default, Notice and Waiver"
with respect to Sections 1004 to 1009, inclusive, of either Indenture (which
Sections would no longer be applicable to such Debt Securities) or described in
clause (vii) under "Events of Default, Notice and Waiver" with respect to a
covenant as to which there has been covenant defeasance, the amount in such
currency, currency unit or composite currency in which such Debt Securities are
payable, and Government Obligations on deposit with the Trustee, will be
sufficient to pay amounts due on such Debt Securities at the time of their
Stated Maturity but may not be sufficient to pay amounts due on such Debt
Securities at the time of the acceleration resulting from such Event of
Default. However, the Company would remain liable to make payment of such
amounts due at the time of acceleration.
The applicable Prospectus Supplement may further describe the
provisions, if any, permitting such defeasance or covenant defeasance,
including any modifications to the provisions described above, with respect to
the Debt Securities of or within a particular series.
CONVERSION RIGHTS
The terms and conditions, if any, upon which the Debt Securities are
convertible into Capital Stock will be set forth in the applicable Prospectus
Supplement relating thereto. Such terms will include whether such Debt
Securities are convertible into Capital Stock, the conversion price (or manner
of calculation thereof), the conversion period, provisions as to whether
conversion will be at the option of the Holders or the Company, the events
requiring an adjustment of the conversion price and provisions affecting
conversion in the event of the redemption of such Debt Securities and any
restrictions on conversion, including restrictions directed at maintaining the
Company's REIT status.
BOOK ENTRY SYSTEM
The Debt Securities of a series may be issued in whole or in part in
the form of one or more global securities ("Global Securities") that will be
deposited with, or on behalf of, a depository (the "Depository") identified in
the Prospectus Supplement relating to such series. Global Securities, if any,
issued in the United States are expected to be deposited with the Depository
Trust Company, as Depository. Global Securities may be issued in fully
registered form and may be issued in either temporary or permanent form. The
specific terms of the depositary arrangement with respect to a series of Debt
Securities, if any, will be described in the applicable Prospectus Supplement
relating to such series.
GOVERNING LAW
The Indentures are governed by and shall be construed in accordance
with the laws of the State of Georgia.
REDEMPTION OF SECURITIES
The Indentures provide that the Debt Securities may be redeemed at any
time at the option of the Company, in whole or in part, for certain reasons
including those intended to protect the Company's status as a REIT. Debt
Securities may also be subject to optional or mandatory redemption on terms and
conditions described in the applicable Prospectus Supplement.
From and after notice has been given as provided in the Indenture, if
funds for the redemption of any Debt Securities called for redemption shall
have been made available on such redemption date, such Debt Securities will
cease to bear interest on the date fixed for such redemption specified in such
notice, and the only right of the Holders of the Debt Securities will be to
receive payment of the Redemption Price.
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DESCRIPTION OF COMMON STOCK
This summary of certain terms and provisions of the Common Stock does
not purport to be complete and is subject to, and qualified in its entirety by
reference to, the terms and provisions of the Company's Articles of
Incorporation, as amended (the "Articles"), and By-laws, as amended, which are
filed as exhibits to the Registration Statement of which this Prospectus is a
part.
The Company is authorized to issue an aggregate of 75,000,000 shares
of Common Stock. As of October 1, 1995, there were 25,652,281 shares of
Common Stock outstanding held by approximately 4,000 shareholders of record.
All outstanding shares of Common Stock are fully paid and nonassessable.
GENERAL
Shareholders of the Company do not have preemptive rights.
Shareholders of record are entitled to cast one vote for each share held on all
matters presented for a vote of shareholders. Cumulative voting for the
election of directors is not permitted. When a quorum is present at any
meeting, the vote of the holders of a majority of the shares present, either in
person or by proxy, shall decide any question properly brought before such
meeting, except on matters where the Georgia Business Corporation Code requires
the vote of the holders of a majority of all outstanding shares, such as
amending the Articles.
The Board of Directors may, in its discretion, cause to be distributed
ratably among the shareholders such portion of the cash available from
operations, net profits, capital surplus or assets as it may from time to time
deem proper.
Except as outlined below under "Restriction on Ownership/REIT
Qualification, "the shares are freely transferable and there are no conversion,
sinking fund, redemption or similar provisions regarding the shares.
RESTRICTION ON OWNERSHIP/REIT QUALIFICATION
The Articles contain provisions restricting transfer of shares and
authorizing the directors to call shares for purchase as appropriate to
maintain the Company's qualification as a REIT under the Code. Among the
requirements for REIT qualification, the Company must have at least 100
shareholders, and five or fewer individuals may not own directly or indirectly
50% or more of the outstanding shares. In addition, 95% of the Company's gross
annual income must come from qualifying sources, including principally "rents
from real property" with the Code specifically excluding from the definition of
such term any rents received from any tenant which itself owns, or which is
more than 10% owned by any individual who owns, more than 10% of the shares.
The Articles authorize the directors to refuse to transfer shares and to call
for the purchase of shares so as to prevent concentrations of ownership
potentially disqualifying the Company as a REIT or potentially disqualifying
income as "rents from real property." The Articles also void any purported
transfer of shares which would result in ownership by less than 100
shareholders, or would result in five or fewer individuals directly or
indirectly owning more than 50% of the Company, or would result in any tenant
or 10% or more owner of a tenant owning more than 10% of the Company; and
further provide that the purported transferee of any such shares shall be
deemed never to have had an interest therein or alternatively shall be deemed
to have acquired and to be holding such shares for and on behalf of the
Company. Any call for purchase of any shares pursuant to the aforesaid
provisions of the Articles would most likely be from one or more holders of
significant blocks whose concentrated ownership is considered by the directors
to threaten the Company's REIT status.
RIGHTS UPON LIQUIDATION
In the event of liquidation of the Company, shareholders are entitled
to share ratably in the assets available for distribution after payment of all
liabilities.
TRANSFER AGENT AND REGISTRAR
SunTrust Bank, Atlanta, Atlanta, Georgia, serves as the Company's
Transfer Agent and Registrar. The Common Stock is listed on the NYSE (Symbol:
IRT).
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<PAGE> 17
PLAN OF DISTRIBUTION
The Company may sell Securities to or through underwriters, and also
may sell Securities directly to other purchasers or through designated agents.
Any such underwriter or agent involved in the offer and sale of the Securities
will be named in the applicable Prospectus Supplement.
The distribution of the Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed,
or at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Company also may, from
time to time, authorize underwriters acting as the Company's agents to offer
and sell the Securities upon the terms and conditions set forth in any
Prospectus Supplement.
In connection with the sale of Securities, underwriters may receive
compensation from the Company or from purchasers of Securities, for whom they
may act as agents, in the form of discounts, concessions or commissions.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act
as agents. Underwriters, dealers and agents that participate in the
distribution of Securities may be deemed to be underwriters, and any discounts
or commissions they receive from the Company, and any profit on the resale of
Securities they realize may be deemed to be underwriting discounts and
commissions under the Securities Act. Any such underwriter or agent will be
identified, and any such compensation received from the Company will be
described, in the applicable Prospectus Supplement.
Unless otherwise specified in the related Prospectus Supplement, each
series of Securities will be a new issue with no established trading market,
other than the Common Stock which is listed on the NYSE. Any Common Stock sold
pursuant to a Prospectus Supplement will be listed on such exchange, subject to
official notice of issuance. The Company may elect to list any series of Debt
Securities on an exchange, but is not obligated to do so. It is possible that
one or more underwriters may make a market in a series of Securities, but will
not be obligated to do so and may discontinue any market making at any time
without notice. Therefore, no assurance can be given as to the liquidity of
the trading market for the Securities.
Under agreements the Company may enter into, underwriters, dealers and
agents who participate in the distribution of Securities may be entitled to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, or be customers of, the Company in the ordinary course of
business.
If so indicated in the applicable Prospectus Supplement, the Company
will authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase Securities from the Company
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any purchaser
under any such contract will be subject to the condition that the purchase of
the Securities shall not at the time of delivery be prohibited under the laws
of the jurisdiction to which such purchaser is subject. The underwriters and
such other agents will not have any responsibility in respect of the validity
or performance of such contracts.
EXPERTS
The consolidated financial statements and related financial statement
schedules incorporated in this Prospectus by reference from the Company's
Annual Report on Form 10-K for the year ended December 31, 1994, as amended and
restated on Form 10-K/A Amendment No. 1 filed September 28, 1995, have been
audited by Arthur Andersen LLP, independent auditors, as stated in their report
which is incorporated herein by reference, and have been so incorporated in
reliance upon the reports of such firm given upon their authority as experts in
accounting and auditing.
LEGAL OPINIONS
The legality of the Securities offered hereby as well as certain
federal income tax matters will be passed upon for the Company by Alston &
Bird.
15
<PAGE> 18
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection
with the offerings contemplated by this Registration Statement:
<TABLE>
<S> <C>
SEC Registration Fee . . . . . . . . . . . . . . . . . . . $ 68,966
National Association of Securities
Dealers, Inc. . . . . . . . . . . . . . . . . . . . . . . 20,000
Blue Sky Fees and Expenses . . . . . . . . . . . . . . . . 10,000
Printing and Engraving Costs . . . . . . . . . . . . . . . 100,000
Accounting Fees and Expenses . . . . . . . . . . . . . . . 50,000
Legal Fees and Expenses. . . . . . . . . . . . . . . . . . 50,000
Trustee and Registrar Fees . . . . . . . . . . . . . . . . 10,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . 11,034
--------
Total $320,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's By-Laws provide that the Company shall indemnify each
director and officer of the Company for any liability and expenses incurred as
a result of service in such a capacity, provided that such person acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interest of the Company.
ITEM 16. EXHIBITS (Example)
1.1 Form of Underwriting Agreement for Debt Securities.*
1.2 Form of Underwriting Agreement for Common Stock.*
4.1 Form of Indenture for Senior Debt Securities (Form of Senior
Security included therein)(Previously filed).
4.2 Form of Indenture for Subordinated Debt Securities (Form of
Subordinated Security included therein)(Previously filed).
3.1 Articles of Incorporation, as amended (filed as Exhibit 4.1 to
the Company's Registration Statement on Form S-3 [No.
33-65604] and incorporated herein by reference).
3.2 By-Laws, as amended (filed as Exhibit 3 to the Company's
Quarterly Report on Form 10-Q for the Quarter Ended March 31,
1995 and incorporated herein by reference).
5. Opinion of Alston & Bird regarding legality of the Offered
Securities.*
12. Statement regarding computation of ratios(Previously filed).
23.1 Consent of Arthur Andersen LLP(Previously filed).
23.2 Consent of Alston & Bird (included in opinion).*
24. Power of Attorney (included on signature page of initial filing
of Registration Statement.)
25. Statement of Eligibility and Qualification of Trustee for the
Debt Securities (SunTrust Bank, Atlanta) on Form T-1(Previously
filed).
--------
* To be incorporated by reference in connection with
the offering of Securities.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required
by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any
facts or events which, individually or together,
represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding
the foregoing, any increase or decreases in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent
no more than 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement.
(iii) To include any material information
with respect to the plan of distribution not
previously disclosed in the Registration Statement or
any material change to such information in the
Registration Statement;
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<PAGE> 19
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 15 of
this Registration Statement or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable, In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted against the
Registrant by such director, officer or controlling person in connection with
the securities being registered hereby, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For the purpose of determining any liability under
the Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this Registration Statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4), or 497(h) under the
Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-2
<PAGE> 20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
amendment to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta, State of
Georgia, on the 7th day of November, 1995.
IRT PROPERTY COMPANY
--------------------
(Registrant)
By: /s/ Donald W. MacLeod
----------------------
Donald W. MacLeod
Chairman and Chief
Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
AMENDMENT TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C>
* Chairman of the Board of November 7, 1995
- ---------------------------- Directors and Chief
Donald W. MacLeod Executive Officer (Principal
Executive Officer)
* President and Chief November 7, 1995
- ---------------------------- Operating Officer; Director
Thomas H. McAuley
* Executive Vice President November 7, 1995
- ---------------------------- and Chief Financial Officer
Mary M. Thomas (Principal Financial and
Accounting Officer); Director
* Director November 7, 1995
- ----------------------------
Homer B. Gibbs, Jr.
* Director November 7, 1995
- ----------------------------
Samuel W. Kendrick
* Director November 7, 1995
- ----------------------------
Bruce A. Morrice
* Director November 7, 1995
- ----------------------------
James H. Nobil
* Director November 7, 1995
- ----------------------------
Louis P. Wolfort
* By: /s/ Mary M. Thomas November 7, 1995
--------------------------
Mary M. Thomas, pursuant
to power of attorney as
attorney-in fact and agent
</TABLE>
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