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EXHIBIT 4.1
IRT PROPERTY COMPANY
Issuer
and
IRT PARTNERS L.P.
Guarantor
to
SUNTRUST BANK, ATLANTA
Trustee
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Supplemental Indenture No. 3
Dated as of September 9, 1998
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GUARANTEE OF SENIOR DEBT SECURITIES
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SUPPLEMENTAL INDENTURE NO. 3, dated as of September 9, 1998 (this
"Supplemental Indenture"), among IRT PROPERTY COMPANY, a corporation duly
organized and existing under the laws of the State of Georgia (the "Company"),
IRT PARTNERS L.P., a limited partnership duly organized and existing under the
laws of the State of Georgia (the "Guarantor"), and SUNTRUST BANK, ATLANTA, a
Georgia banking corporation duly organized and existing under the laws of the
State of Georgia, as Trustee (the "Trustee").
RECITALS
WHEREAS, the Company and the Trustee have heretofore entered into an
Indenture dated as of November 9, 1995 (as amended, supplemented or otherwise
modified through the date hereof, the "Indenture"), a form of which has been
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended, as an exhibit to the Company's Registration Statement on Form
S-3 (Registration No. 33-63523), providing for the issuance from time to time of
senior debt securities of the Company (the "Securities");
WHEREAS, the Company has transferred certain of its assets to the
Guarantor and, as a consequence of such transfer, the Guarantor will provide the
guaranty herein set forth (the "Guaranty") of the Obligations (as defined
herein);
WHEREAS, Section 901(9) of the Indenture permits the Company and the
Trustee to enter into indentures supplemental thereto without the consent of any
Holder of Securities to make any change to the Indenture, provided that such
change does not adversely affect the interests of the Holders of Securities of
any series or any related coupons in any material respect;
WHEREAS, the Guarantor has determined that its execution, delivery and
performance of this Supplemental Indenture directly benefit, and are within the
partnership purposes and best interests of, the Guarantor;
WHEREAS, the Board of Directors of the Company has duly adopted
resolutions authorizing the Company to execute and deliver this Supplemental
Indenture and the Board of Directors of the Guarantor's general partner has duly
adopted resolutions authorizing the Guarantor to execute and deliver this
Supplemental Indenture; and
WHEREAS, all other conditions and requirements necessary to make this
Supplemental Indenture, when duly executed and delivered, a valid and binding
agreement in accordance with its terms and for the purposes herein expressed,
have been performed and fulfilled.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Guarantor hereby unconditionally guarantees to the Trustee and the Holders full
and prompt payment and performance when due, whether at maturity, by
acceleration or otherwise, of all Obligations. Each Obligation shall rank pari
passu with each other Obligation.
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ARTICLE ONE
DEFINITIONS
SECTION 1.1. Definitions. For all purposes of this Supplemental
Indenture, except as otherwise expressly provided for or unless the context
otherwise requires: (a) capitalized terms used but not defined herein shall have
the respective meanings assigned to them in the Indenture; and (b) all
references herein to Articles and Sections refer to the corresponding Articles
and Sections of this Supplemental Indenture. As used herein, "Obligations" means
(a) all payment and performance obligations of the Company (i) under the
Indenture with respect to the Securities, (ii) under the Securities and (iii) as
a result of the issuance of the Securities and (b) the obligation to pay an
amount equal to the amount of any and all damages which the Trustee and the
Holders, or any of them, may suffer by reason of a breach by either the Company
or any other obligor of any obligation, covenant or undertaking under (i) the
Indenture with respect to the Securities or (ii) the Securities.
ARTICLE TWO
GUARANTY
SECTION 2.1. Obligations Several. Regardless of whether any proposed
guarantor or any other Person or Persons is, are or shall become in any other
way responsible to the Trustee and the Holders, or any of them, for or in
respect of the Obligations or any part thereof, and regardless of whether or not
any Person or Persons now or hereafter responsible to the Trustee and the
Holders, or any of them, for the Obligations or any part thereof, whether under
the Guaranty or otherwise, shall cease to be so liable, the Guarantor hereby
declares and agrees that the Guaranty is and shall continue to be a several
obligation, shall be a continuing guaranty and shall be operative and binding,
and that the Guarantor shall have no right of subrogation with respect to the
Guaranty.
SECTION 2.2. Guaranty Final. Upon the execution and delivery of this
Supplemental Indenture by the parties hereto, this Supplemental Indenture shall
be deemed to be finally executed and delivered by the parties hereto and shall
not be subject to or affected by any promise or condition affecting or limiting
the Guarantor's liability, and no statement, representation, agreement or
promise on the part of the Trustee, the Holders, the Company, or any of them, or
any officer, employee or agent thereof, unless contained herein forms any part
of this Supplemental Indenture or has induced the making hereof or shall be
deemed in any way to affect the Guarantor's liability hereunder.
SECTION 2.3. Amendment and Waiver. No alteration or waiver of this
Supplemental Indenture or of any of its terms, provisions or conditions shall be
binding upon the parties against whom enforcement is sought unless made in
writing and signed by an authorized officer of such party or its general
partner, as applicable.
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SECTION 2.4. Dealings With the Company. The Trustee and the Holders, or
any of them, may, from time to time, without exonerating or releasing the
Guarantor in any way under the Guaranty, (i) take such further or other security
or securities for the Obligations or any part thereof as the Trustee and the
Holders, or any of them, may deem proper, consistent with the Indenture, or (ii)
release, discharge, abandon or otherwise deal with or fail to deal with any
guarantor of the Obligations or any security or securities therefor or any part
thereof now or hereafter held by the Trustee and the Holders, or any of them, or
(iii) consistent with the Indenture, amend, modify, extend, accelerate or waive
in any manner any of the provisions, terms, or conditions of the Indenture and
the Securities, all as the Trustee and the Holders, or any of them, may consider
expedient or appropriate in their sole discretion. Without limiting the
generality of the foregoing, or of Section 2.5 hereof, it is understood that the
Trustee and the Holders, or any of them, may, without exonerating or releasing
the Guarantor, give up, or modify or abstain from perfecting or taking advantage
of any security for the Obligations and accept or make any compositions or
arrangements, and realize upon any security for the Obligations when, and in
such manner, as the Trustee and the Holders, or any of them, may deem expedient,
consistent with the Indenture, all without notice to the Guarantor.
SECTION 2.5. Guaranty Unconditional. The Guarantor acknowledges and
agrees that no change in the nature or terms of the Obligations, the Indenture
or the Securities, or other agreements, instruments or contracts evidencing,
related to or attendant with the Obligations (including any novation), nor any
determination of lack of enforceability thereof, shall discharge all or any part
of the liabilities and obligations of the Guarantor pursuant to the Guaranty; it
being the purpose and intent of the Guarantor, the Company, the Trustee and the
Holders that the covenants, agreements and all liabilities and obligations of
the Guarantor hereunder are absolute, unconditional and irrevocable under any
and all circumstances. Without limiting the generality of the foregoing, the
Guarantor agrees that until each and every one of the covenants and agreements
of this Supplemental Indenture is fully performed, the Guarantor's undertakings
hereunder shall not be released, in whole or in part, by any action or thing
which might, but for this Section 2.5, be deemed a legal or equitable discharge
of a surety or guarantor, or by reason of any waiver, omission of the Company,
the Trustee and the Holders, or any of them, or their failure to proceed
promptly or otherwise, or by reason of any action taken or omitted by the
Company, the Trustee and the Holders, or any of them, whether or not such action
or failure to act varies or increases the risk of, or affects the rights or
remedies of, the Guarantor or by reason of any further dealings among the
Company, the Trustee and the Holders, or any of them, or any other guarantor or
surety, and the Guarantor hereby expressly waives and surrenders any defense to
its liability hereunder, or any right of counterclaim or offset of any nature or
description which it may have or which may exist based upon, and shall be deemed
to have consented to, any of the foregoing acts, omissions, things, agreements
or waivers.
SECTION 2.6. Maximum Guaranteed Amount. The creation or existence from
time to time of Obligations in excess of the amount committed to or outstanding
on the date of this Supplemental Indenture is hereby authorized by the
Guarantor, without notice to the Guarantor, and shall in no way impair or affect
the Guaranty or the rights of the Trustee and the Holders, or any of them,
herein. It is the intention of the Guarantor, the Company, the Trustee and the
Holders, that the Guarantor's obligations hereunder shall be in, but not in
excess of, the Maximum Guaranteed Amount. The "Maximum Guaranteed Amount" shall
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mean the maximum amount which could be paid out by the Guarantor without
rendering the Guaranty void or voidable under applicable law including, without
limitation, (a) Title 11 of the United States Code, as amended, and (b)
applicable state law regarding fraudulent conveyances or fraudulent transfers.
SECTION 2.7. Bankruptcy. Upon the bankruptcy or winding up or other
distribution of assets of the Company or any Subsidiary of the Company (other
than the Guarantor) or of any surety or guarantor for the Obligations, the
rights of the Trustee and the Holders, or any of them, against the Guarantor
shall not be affected or impaired by the omission of the Trustee and the
Holders, or any of them, to prove its or their claim, as appropriate, or to
prove its or their full claim, as appropriate, and the Trustee and the Holders
may prove such claims as they see fit and may refrain from proving any claim and
in their respective discretion they may value as they see fit or refrain from
valuing any security held by the Trustee and the Holders, or any of them,
without in any way releasing, reducing or otherwise affecting the liability to
the Trustee and the Holders of the Guarantor.
SECTION 2.8. Application of Payments. The Trustee hereby acknowledges
and agrees, and each Holder shall be deemed to hereby acknowledge and agree,
that to the extent any of the Existing Senior Obligations (as defined below) is
then in default, any funds, payments, claims or distributions (the "Guaranty
Proceeds") actually received hereunder shall be made available for distribution
equally and ratably (based on the principal amounts then outstanding) among (a)
the holders of the Obligations and (b) the holders of the Existing Senior
Obligations. For purposes hereof, "Existing Senior Obligations" shall mean Debt
for borrowed money owed or guaranteed in connection with any unsecured and
non-subordinated Debt for borrowed money of the Company or the Guarantor (a)
issued in offerings registered under the Securities Act of 1933 or in placements
exempt from registration pursuant to Rule 144A or Regulation S thereunder, or
(b) otherwise incurred, which is, in either case, outstanding on the date hereof
or incurred hereafter in accordance with the Indenture. This Section 2.8 shall
not apply to any payments, funds, claims or distributions received by the
Trustee or any Holder directly or indirectly from the Company or any other
Person other than from the Guarantor hereunder. The Guarantor acknowledges and
agrees with the Trustee and each Holder as follows:
(a) to the extent any Guaranty Proceeds are distributed to the
holders of the Existing Senior Obligations, the Obligations shall not be deemed
reduced by any such distribution, and the Guarantor will continue to make
payments pursuant to the Guaranty until such time as the Obligations have been
paid in full after taking into effect any distributions of Guaranty Proceeds to
the holders of Existing Senior Obligations;
(b) nothing contained herein shall be deemed to limit, modify
or alter the rights of the Trustee and the Holders or be deemed to subordinate
the Obligations to the Existing Senior Obligations, nor give to any holder of
Existing Senior Obligations any rights of subrogation;
(c) nothing contained herein shall be deemed for the benefit
of any holders of Existing Senior Obligations nor shall anything be construed to
impose on the Trustee or any Holder any fiduciary duties, obligations or
responsibilities to the holders of the Existing Senior Obligations; and
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(d) the Guaranty is for the sole benefit of the Trustee and
the Holders and their respective successors and assigns, and any amounts
received by the Trustee and the Holders, or any of them, from whatsoever source
and applied toward the payment of the Obligations shall be applied in such order
of application as is set forth in the Indenture, if any.
SECTION 2.9. Waivers by Guarantor. The Guarantor hereby expressly
waives: (a) notice of acceptance of the Guaranty, (b) notice of the existence or
creation of all or any of the Obligations, (c) presentment, demand, notice of
dishonor, protest, and all other notices whatsoever, (d) all diligence in
collection or protection of or realization upon the Obligations or any part
thereof, any obligation hereunder, or any security for any of the foregoing and
(e) all rights of subrogation, indemnification, contribution and reimbursement
against the Company, all rights to enforce any remedy the Trustee and the
Holders, or any of them, may have against the Company, and any benefit of, or
right to participate in, any collateral or security now or hereinafter held by
the Trustee and the Holders, or any of them, in respect of the Obligations, even
upon payment in full of the Obligations. Any money received by the Guarantor in
violation of this Section 2.9 shall be held in trust by the Guarantor for the
benefit of the Trustee and the Holders. If a claim is ever made upon the Trustee
and the Holders, or any of them, for the repayment or recovery of any amount or
amounts received by any of them in payment of any of the Obligations and such
Person repays all or part of such amount by reason of (a) any judgment, decree,
or order of any court or administrative body having jurisdiction over such
Person or any of its property, or (b) any good faith settlement or compromise of
any such claim effected by such Person with any such claimant, including the
Company, then in such event the Guarantor agrees that any such judgment, decree,
order, settlement, or compromise shall be binding upon the Guarantor,
notwithstanding any revocation hereof or the cancellation of any promissory note
or other instrument evidencing any of the Obligations, and the Guarantor shall
be and remain obligated to such Person hereunder for the amount so repaid or
recovered to the same extent as if such amount had never originally been
received by such Person.
SECTION 2.10. Remedies Cumulative. No delay by the Trustee and the
Holders, or any of them, in the exercise of any right or remedy shall operate as
a waiver thereof, and no single or partial exercise by the Trustee and the
Holders, or any of them, of any right or remedy shall preclude other or further
exercise thereof or the exercise of any other right or remedy. No action by the
Trustee and the Holders, or any of them, permitted hereunder shall in any way
impair or affect the Guaranty. For the purpose of the Guaranty, the Obligations
shall include, without limitation, all Obligations of the Company to the Trustee
and the Holders, notwithstanding any right or power of any third party,
individually or in the name of the Company or any other Person, to assert any
claim or defense as to the invalidity or unenforceability of any such
Obligation, and no such claim or defense shall impair or affect the obligations
of the Guarantor hereunder.
SECTION 2.11. Miscellaneous. The Guaranty is a guaranty of payment and
not of collection. In the event of a demand upon the Guarantor under the
Guaranty, the Guarantor shall be held and bound to the Trustee and the Holders
directly as debtor in respect of the payment of the amounts hereby guaranteed.
All reasonable costs and expenses, including attorneys' fees and expenses,
incurred by the Trustee and the Holders, or any of them, in obtaining
performance of or collecting payments due under the Guaranty shall be deemed
part
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of the Obligations guaranteed hereby. The provisions of the Guaranty are
for the benefit of the Trustee and the Holders and may not be relied upon or
enforced by any other Person without the express written consent of the Trustee
and, as to enforcement, may only be enforced in accordance with this
Supplemental Indenture and the Indenture.
SECTION 2.12. Benefit to Guarantor. The Guarantor expressly represents
and acknowledges that the issuance and sale of the Securities under the
Indenture has been, and will be, of direct interest, benefit and advantage to
the Guarantor.
SECTION 2.13. Solvency. The Guarantor expressly represents and warrants
that as of the date hereof and after giving effect to the transactions
contemplated by the Indenture (a) the capital of the Guarantor will not be
unreasonably small to conduct its business; (b) the Guarantor will not have
incurred debts, or have intended to incur debts, beyond its ability to pay such
debts as they mature; and (c) the present fair salable value of the assets of
the Guarantor is greater than the amount that will be required to pay its
probable liabilities (including debts) as they become absolute and matured. For
purposes of this Section 2.13, "debt" means any liability on a claim, and
"claim" means (x) the right to payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
undisputed, legal, equitable, secured or unsecured, or (y) the right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, undisputed, secured or
unsecured.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. Ratification of Indenture. Except as expressly modified or
amended hereby, the Indenture continues in full force and effect and is in all
respects confirmed and preserved.
SECTION 3.2. Governing Law. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of Georgia.
This Supplemental Indenture is subject to the provisions of the Trust Indenture
Act of 1939, as amended and shall, to the extent applicable, be governed by such
provisions.
SECTION 3.3. Counterparts. This Supplemental Indenture may be executed
in any number of counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 3.4. Notices. Any notice required or permitted hereunder or
under the Indenture to be given or made to the Guarantor shall be given or made
in writing and mailed, first class postage prepaid, to the Guarantor at the
address set forth below its signature hereon, or at any other address previously
furnished in writing to the Trustee and the Company by the Guarantor, with a
copy to the Company given or made in accordance with Section 105 of the
Indenture.
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SECTION 3.5. Successors and Assigns. The Guaranty shall be binding upon
the Guarantor, its successors and assigns and inure to the benefit of the
successors and assigns of the Trustee and the Holders.
SECTION 3.6. Time of the Essence. Time is of the essence with regard to
the Guarantor's performance of its obligations hereunder.
SECTION 3.7. Rights of Holders Limited. Notwithstanding anything herein
to the contrary, the rights of Holders with respect to this Supplemental
Indenture and the Guaranty shall be limited in the manner and to the extent the
rights of Holders are limited under the Indenture with respect to the Indenture
and the Securities.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed by their respective officers hereunto duly
authorized, all as of the day and year first written above.
IRT PROPERTY COMPANY, as Issuer
By: /S/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Executive Vice President
IRT PARTNERS L.P., as Guarantor
By: IRT Property Company, its general partner
By: /S/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Executive Vice President
Address: IRT Partners, L.P.
c/o IRT Property Company
000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
SUNTRUST BANK, ATLANTA, as Trustee
By: /S/ XXXXXX XXXXXXX
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Name: Xxxxxx XxXxxxx
Title: Vice President
SUNTRUST BANK, ATLANTA, as Trustee
By: /S/ XXXXXXXX XXXXX
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Name: Xxxxxxxx Xxxxx
Title: Trust Officer
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