EXHIBIT 1.1
IRT PROPERTY COMPANY
3,000,000 SHARES
COMMON STOCK
Underwriting Agreement
New York, New York
April 29, 2002
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
IRT Property Company, a corporation organized under the laws of the
State of Georgia (the "Company"), proposes to sell to the several underwriters
named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, the number of shares of Common
Stock, $1.00 par value per share ("Common Stock"), of the Company set forth in
Schedule I hereto (the "Securities") (said shares to be issued and sold by the
Company being hereinafter called the "Underwritten Securities"). The Company
also proposes to grant to the Underwriters an option to purchase up to the
number of additional shares of Common Stock set forth in Schedule II hereto to
cover over-allotments (the "Option Securities"; the Option Securities, together
with the Underwritten Securities, being hereinafter called the "Securities"). To
the extent there are no additional Underwriters listed on Schedule I other than
you, the term Representatives as used herein shall mean you, as Underwriters,
and the terms Representatives and Underwriters shall mean either the singular or
plural as the context requires. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be (each, an "Incorporated Document" and
collectively, the "Incorporated Documents"); and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any
Incorporated Document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference. Certain terms used herein are defined
in Section 17 hereof.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter as set forth below
in this Section 1.
(a) The Company meets the requirements for use of Form S-3
under the Act and has prepared and filed with the Commission a
registration statement (the file number of which is set forth in
Schedule I hereto) on Form S-3, including a related basic prospectus,
for registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments thereto,
including a Preliminary Final Prospectus, each of which has previously
been furnished to you. The Company will next file with the Commission
one of the following: (1) after the Effective Date of such registration
statement, a final prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b), (2) prior to the Effective Date
of such registration statement, an amendment to such registration
statement (including the form of final prospectus supplement) or (3) a
final prospectus in accordance with Rules 415 and 424(b). In the case
of clause (1), the Company has included in such registration statement,
as amended at the Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be
included in such registration statement and the Final Prospectus. As
filed, such final prospectus supplement or such amendment and form of
final prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, and, except to the
extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior
to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein. The Registration
Statement, at the Execution Time, meets the requirements set forth in
Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined herein)
and on any date on which Option Securities are purchased, if such date
is not the Closing Date (a "settlement date"), the Final Prospectus
(and any supplement thereto) will, comply in all material respects with
the applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; on the Effective Date and at the Execution
Time, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the
Final Prospectus, if not filed pursuant to Rule 424(b), will not, and
on the date of any filing pursuant to Rule 424(b) and on the Closing
Date and any settlement date, the Final Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement or the Final
Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).
(c) The Incorporated Documents heretofore filed, when they
were filed (or, if any amendment with respect to any such document was
filed, when such amendment was filed), conformed in all material
respects with the applicable requirements of the Exchange Act and the
rules and regulations thereunder; any further Incorporated Documents so
filed will, when they are filed, conform in all material respects with
the applicable requirements of the Exchange Act and the rules and
regulations thereunder; no such document when it was filed (or, if an
amendment with respect to any such document was filed, when such
amendment was filed), contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; and no such
further document, when it is filed, will contain an untrue statement of
a material fact or will omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(d) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Georgia,
with corporate power and authority to own its properties and conduct
its business as described in the Final Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification, except
where the failure to be so qualified is not reasonably likely to result
in a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect").
(e) Attached hereto as Annex I is a true and complete list of
all subsidiaries of the Company and all other corporations,
partnerships, joint ventures, limited liability companies and other
entities in which the Company directly or indirectly owns 5% or more of
its capital stock or any other equity or ownership interest. Annex I
accurately sets forth the jurisdiction of organization of, and the
Company's approximate percentage ownership interest in, each such
subsidiary and other entity, and whether each such subsidiary and other
entity listed thereon is a corporation, partnership, limited liability
company or other type of entity.
(f) Each of IRT Partners, L.P. ("IRT Partners"), IRT Capital
Corporation II ("IRTCCII"), IRT Management Company ("IRT Management")
and IRT Alabama, Inc. ("IRT Alabama") and any other "significant
subsidiary" of the Company within the meaning of Rule 405 of the Act
(individually, "Significant Subsidiary" and, collectively, the
"Significant Subsidiaries") has been duly incorporated or organized, as
the case may be, and is a validly existing corporation, limited
partnership or limited liability company, as the case may be, in good
standing under the laws of the jurisdiction of its incorporation or
organization, with corporate or other entity power and authority to own
its properties and conduct its business as described in the Final
Prospectus; and each subsidiary of the Company is duly qualified to do
business as a foreign corporation,
limited partnership or limited liability company, as the case may be,
in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not
have a Material Adverse Effect; all of the issued and outstanding
capital stock or other equity interests in each Significant Subsidiary
of the Company has been duly authorized and validly issued and, in the
case of corporate subsidiaries, is fully paid and nonassessable; and
the capital stock or other equity interests in each subsidiary owned by
the Company, directly or through subsidiaries, is owned free from liens
and encumbrances.
(g) The Amended and Restated Agreement of Limited Partnership
of IRT Partners ("Partnership Agreement") has been duly and validly
authorized, executed and delivered by the Company and is a valid and
binding agreement, enforceable against the Company, as general partner,
in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally and by general principles of
equity. To the Company's knowledge, the Partnership Agreement has been
duly executed and delivered by the other parties thereto and is a valid
and binding agreement, enforceable against such parties in accordance
with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
creditors' rights generally and by general principles of equity. The
Company owns at the date hereof, directly or indirectly through IRT
Management, approximately 94% of the partnership interests in IRT
Partners.
(h) No holder of outstanding shares of capital stock of the
Company has any registration rights with respect to such shares which
would or could require such shares to be included in the Registration
Statement.
(i) The Company's authorized equity capitalization is as set
forth in the Final Prospectus; the capital stock of the Company
conforms in all material respects to the description thereof contained
in the Final Prospectus; the outstanding shares of Common Stock have
been duly and validly authorized and issued and are fully paid and
nonassessable; the Securities have been duly and validly authorized,
and, when issued and delivered to and paid for by the Underwriters
pursuant to this Agreement, will be fully paid and nonassessable; the
Securities have been approved for listing, subject to official notice
of issuance, on the New York Stock Exchange (the "NYSE") or an
application therefor has been filed with the NYSE; the certificates for
the Securities are in valid and sufficient form; and the holders of
outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Securities; and, except
as set forth in the Final Prospectus, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights
to convert any obligations into or exchange any securities for, shares
of capital stock of or ownership interests in the Company are
outstanding other than, and only to the extent of, the potential
obligations expressly contemplated by Section 5(f) of this Agreement.
(j) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the
transactions contemplated by this Agreement in connection with the
issuance and sale of the Securities by the Company, except such as have
been obtained and made under the Act and such as may be required under
state securities laws and under Rule 424 under the Act and listing of
the Securities with the NYSE.
(k) The execution, delivery and performance of this Agreement
does not, and the issuance and sale of Securities by the Company in
accordance with this Agreement and compliance with the terms and
provisions hereof will not, result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having jurisdiction over the
Company or any subsidiary of the Company or any of their properties, or
any agreement or instrument to which the Company or any such subsidiary
is a party or by which the Company or any such subsidiary is bound or
to which any of the properties of the Company or any such subsidiary is
subject, or the charter or by-laws of the Company or any such
subsidiary, and the Company has full power and authority to authorize,
issue and sell the Securities as contemplated by this Agreement.
(l) To its knowledge, the Company and its subsidiaries conduct
their respective businesses in compliance with all applicable laws,
orders, rules and regulations of applicable governmental and regulatory
authorities of the jurisdictions in which they conduct business,
including, without limitation, the Americans with Disabilities Act of
1990 and all applicable local, state and federal employment,
truth-in-advertising, franchising and immigration laws and regulations,
except where the failure to be so in compliance would not have a
Material Adverse Effect.
(m) This Agreement has been duly authorized, executed and
delivered by the Company.
(n) Except as disclosed in the Final Prospectus, the Company
and its subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each
case free from liens, other than mortgage indebtedness incurred in the
ordinary course, encumbrances and defects that would not materially
affect the value thereof or materially interfere with the use made or
to be made thereof by them; and except as disclosed in the Final
Prospectus, the Company and its subsidiaries hold any leased real or
personal property under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to be made thereof
by them.
(o) The Company or its subsidiaries have acquired title
insurance with respect to each of the properties described in the Final
Prospectus as being owned by the Company or its subsidiaries, except,
in each case, where the failure to maintain such title insurance is not
reasonably likely to have a Material Adverse Effect.
(p) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that,
if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material Averse Effect.
(q) Each of the Company and its subsidiaries maintains
property and casualty insurance with respect to each of the properties
owned by them in an amount and on such items as is reasonable and
customary for businesses of this type.
(r) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
would have a Material Adverse Effect.
(s) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"Intellectual Property") necessary to conduct the business now operated
by them, or presently employed by them, and have not received any
notice of infringement of or conflict with asserted rights of others
with respect to any intellectual property rights that, if determined
adversely to the Company or any of its subsidiaries, would individually
or in the aggregate have a Material Adverse Effect.
(t) Except as disclosed in the Final Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "Environmental Laws"), owns or operates
any real property contaminated with any substance that is subject to
any Environmental Laws, is liable for any off-site disposal or
contamination pursuant to any Environmental Laws, or is subject to any
claim, or has knowledge of any threatened claim or investigation,
relating to any Environmental Laws, which violation, contamination,
liability or claim, individually or in the aggregate, is reasonably
likely to have a Material Adverse Effect; and the Company is not aware
of any pending investigation which would lead to such a claim.
(u) Except as disclosed in the Final Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that,
individually or in the aggregate, is reasonably likely to have a
Material Adverse Effect or would materially and adversely affect the
ability of the Company to perform its obligations under this Agreement;
and, to the Company's knowledge, no such actions, suits or proceedings
are threatened or contemplated.
(v) The financial statements included in the Registration
Statement and Final Prospectus present fairly the financial position of
the Company, IRT Partners and the Company's consolidated subsidiaries
as of the dates shown and their results of operations and cash flows
for the periods shown, and such financial statements have been prepared
in conformity with generally accepted accounting principles in the
United States applied on a consistent basis.
(w) Except as disclosed in the Final Prospectus, since the
date of the latest audited financial statements included in the Final
Prospectus, (i) there has been no material adverse change, nor any
development or event that would involve a prospective material adverse
change, in the condition (financial or other), business, earnings,
properties or results of operations of the Company and its subsidiaries
taken as a whole, and, except as disclosed in or contemplated by the
Final Prospectus, there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock (except in the ordinary course of business consistent with past
practice) and (ii) neither the Company nor any of its subsidiaries has
sustained any material loss or interference with its assets, businesses
or properties (whether owned or leased) from fire, explosion,
earthquake, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or any court or legislative or
other governmental action, order or decree that is reasonably likely to
have a Material Adverse Effect.
(x) The Company and the Significant Subsidiaries are not, and,
after giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Final
Prospectus, will not be, an "investment company" as defined in the
Investment Company Act of 1940.
(y) Immediately after the sale of Securities by the Company
hereunder, the aggregate amount of Securities which shall have been
issued and sold by the Company hereunder and of securities of the
Company (other than the Securities) that shall have been issued and
sold pursuant to the Registration Statement will not exceed the amount
of securities registered under the Registration Statement.
(z) The Company was and is organized to qualify as a "real
estate investment trust" under the Internal Revenue Code of 1986, as
amended (the "Code"); the Company has qualified as a "real estate
investment trust" under the Code for each of its taxable years ended
through December 31, 2000 and is in a position to continue to qualify
as a "real estate investment trust" under the Code for the taxable year
ended December 31, 2001 and after consummation of the transactions
contemplated by the Prospectus; and the Company's present and
contemplated operations, assets and income will enable the Company to
meet the requirements for qualification as a "real estate investment
trust" under the Code. The Company has filed United Stated Federal
Income Tax Returns for each of its fiscal years through and including
the fiscal year ended December 31, 2000 but has not yet filed a United
States Federal Income Tax Return for the fiscal year ended December 31,
2001.
(aa) Each entity listed on Annex I, other than IRTCCII, either
qualifies as a partnership for federal, state and local income tax
purposes or as a "qualified REIT subsidiary" within the meaning of
Section 856(i) of the Code or qualifies to be disregarded as an entity
separate from the Company or one of its subsidiaries for federal, state
and local income tax purposes.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
$11.19 per share, the amount of the Underwritten Securities set forth opposite
such Underwriter's name in Schedule II hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company hereby grants
an option to the several Underwriters to purchase, severally and not jointly, up
to an aggregate of 450,000 Option Securities at the same purchase price per
share as the Underwriters shall pay for the Underwritten Securities. Said option
may be exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or in part
at any time on or before the 30th day after the date of the Final Prospectus
upon written or telegraphic notice by the Representatives to the Company setting
forth the number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date. The number of
shares of the Option Securities to be purchased by each Underwriter shall be the
same percentage of the total number of shares of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of the
Underwritten Securities, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made on the date and at the time
specified in Schedule I hereto or at such time on such later date not more than
three Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price thereof
to or upon the order of the Company by wire transfer of funds immediately
available to the Company in an account specified by the Company. Delivery of the
Underwritten Securities and the Option Securities shall be made through the
facilities of The Depository Trust Company unless the Representatives shall
otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Company will deliver
the Option Securities (at the expense of the Company) to the Representatives, at
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer of funds
immediately available to the Company in an account specified by the Company. If
settlement for the Option Securities occurs after the Closing Date, the Company
will deliver to the Representatives on the settlement date for the Option
Securities, and the obligation of the Underwriters to purchase the Option
Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its commercially reasonable best
efforts to cause the Registration Statement, if not effective at the
Execution Time, and any amendment thereof, to become effective. Prior
to the termination of the offering of the Securities, the Company will
not file any amendment of the Registration Statement or supplement
(including the Final Prospectus or any Preliminary Final Prospectus) to
the Basic Prospectus or any Rule 462(b) Registration Statement unless
the Company has furnished you a copy for your review prior to filing
and will not file any such proposed amendment or supplement to which
you reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Final Prospectus is otherwise required under
Rule 424(b), the Company will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise
the Representatives (1) when the Registration Statement, if not
effective at the Execution Time, shall have become effective, (2) when
the Final Prospectus, and any supplement thereto, shall have been filed
(if required) with the Commission pursuant to Rule 424(b) or when any
Rule 462(b) Registration Statement shall have been filed with the
Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (5) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (6) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use
its commercially reasonable best efforts to prevent the issuance of any
such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (1) notify the
Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement
or omission or effect such compliance and (3) supply any supplemented
Final Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of each Preliminary
Final Prospectus and the Final Prospectus and any supplement thereto as
the Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to
the offering.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may reasonably designate, will
maintain such qualifications in effect so long as required for the
distribution of the Securities and will pay any fee of the National
Association of Securities Dealers, Inc., if any, in connection with its
review of the offering, if any; provided that in no event shall the
Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising out
of the offering or sale of the Securities, in any jurisdiction where it
is not now so subject.
(f) The Company will not, without the prior written consent of
Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is designed
to, or is reasonably likely to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the Company
or any person in privity with the Company or any affiliate of the
Company) directly or indirectly, including the filing (or participation
in the filing) of a registration statement with the Commission in
respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Exchange Act, any other shares of Common Stock or any
securities convertible into, or exercisable, or exchangeable for,
shares of Common Stock, until the Business Day set forth on Schedule I
hereto, provided, however, that the Company may issue and sell Common
Stock pursuant to any employee stock option plan, stock purchase plans,
stock ownership plan or dividend reinvestment plan of the Company in
effect at the Execution Time, issue operating units in IRT Partners
that are convertible into or redeemable for shares of Common Stock to
one or more entities in existence on the date hereof that are
controlled by the Company, and the Company may issue Common Stock
issuable upon the conversion of securities or the exercise of options
or warrants outstanding at the Execution Time.
(g) The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(h) The Company will use its best efforts to meet the
requirements to qualify as a REIT under the Code unless the Company's
Board of Directors determines by resolution that it is in the best
interests of the Company's stockholders not to so qualify.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time, the Closing Date and any settlement date pursuant to Section
3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) The Company shall have requested and caused each of Xxxxxx
& Bird LLP, counsel for the Company (with respect to paragraphs (ii)
through (iv), (vi), (viii) and (ix) below) and in-house counsel to the
Company (with respect to paragraphs (i), (v) and (vi) below), to have
furnished to the Representatives their opinions, dated the Closing Date
and addressed to the Representatives to the effect set forth below:
(i) Each of the Company and its subsidiaries has been
duly incorporated or established, as the case may be, and is
validly existing as a corporation, limited partnership or
limited liability company, as the case may be, in good
standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and
authority to own its properties and conduct its business as
described in the Final Prospectus; and the Company and each of
its subsidiaries is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure
to be so qualified would not have a Material Adverse Effect;
and IRT Partners has been duly formed and is validly existing
as a limited partnership and in good standing under the laws
of the State of Georgia, with full power and authority to own
its properties and conduct its business as described in the
Final Prospectus.
(ii) The Company's authorized equity capitalization
is as set forth in the Final Prospectus; the capital stock of
the Company conforms in all material
respects to the description thereof contained in the Final
Prospectus; the outstanding shares of Common Stock have been
duly and validly authorized and issued and are fully paid and
nonassessable; the Securities have been duly and validly
authorized, and, when issued and delivered to and paid for by
the Underwriters pursuant to this Agreement, will be fully
paid and nonassessable; the Securities have been approved for
listing, subject to official notice of issuance, on the New
York Stock Exchange; the form of certificate used to evidence
the Securities is in due and proper form and complies with all
applicable statutory requirements, with any applicable
requirements of the Company's organizational documents and
with the requirements of the NYSE; and the holders of
outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to subscribe for the
Securities; and, except as set forth in the Final Prospectus,
no options, warrants or other rights to purchase, agreements
or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of
capital stock of or ownership interests in the Company are
outstanding;
(iii) The Registration Statement has become effective
under the Act, any required filing of the Final Prospectus,
and any supplements thereto, pursuant to Rule 424(b) under the
Act has been or will be made in the manner and within the time
period required by Rule 424(b); to the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued,
no proceedings for that purpose have been instituted or
threatened, and the Registration Statement and Final
Prospectus (except that no opinion need be expressed as to the
financial statements and other financial and statistical
information contained therein or any Trustee's Statement of
Eligibility on Form T-1) comply as to form in all material
respects with the applicable requirements of the Act and the
Exchange Act; and such counsel has no reason to believe that
the Registration Statement as of its effective date and as of
the Closing Date contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus includes any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading (except that no opinion
need be expressed as to the financial statements and other
financial and statistical information contained therein or as
to the Trustee's Statement of Eligibility on Form T-1).
(iv) All approvals required to be obtained from
governmental or regulatory authorities in connection with the
issuance and sale of the Securities by the Company have been
obtained and are in full force in effect, except such as have
been obtained and made under the Act and such as may be
required under state securities laws and Rule 424 under the
Act.
(v) Neither the execution and delivery of this
Agreement, the issue and sale of the Securities, nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of, or compliance with, the
terms of this
Agreement will conflict with, result in a breach or violation
of, or constitute a default under, any law or the charter or
bylaws of the Company or the terms of any or other agreement
or instrument identified as material by the Company to such
counsel (it being understood that such agreements and
instruments are as set forth as Exhibits to the Company's most
recent Annual Report on Form 10-K for the year ended December
31, 2001) and to which the Company, or any of its subsidiaries
is a party or bound, or any judgment, order, decree or
regulation known to such counsel to be applicable to the
Company, or such subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company, or such subsidiaries.
(vi) This Agreement has been duly authorized,
executed and delivered by the Company.
(vii) Neither the Company nor the Significant
Subsidiaries are subject to registration under the Investment
Company Act of 1940.
(viii) For all applicable tax years as to which the
Company's tax returns are subject to audit and the Company is
subject to assessment for taxes reportable therein, the
Company has been organized and operated in conformity with the
requirements for qualification and taxation as a "real estate
investment trust" under the Code; and the Company's method of
operation will permit it to continue to meet the requirements
for taxation as a "real estate investment trust" under the
Code.
(ix) Each subsidiary of the Company listed on Annex
I, other than IRTCCII, either (i) qualifies as a partnership
for federal and Georgia state income tax purposes or as a
"qualified REIT subsidiary" within the meaning of Section
856(i) of the Code or (ii) qualifies to be disregarded as an
entity separate from the Company or one of its subsidiaries
for federal and Georgia state income tax purposes.
In rendering such opinion, counsel may (A) state that its
opinion is limited to the laws of the State of Georgia and the Federal
laws of the United States and (B) rely, to the extent they deem proper,
on certificates of responsible officers of the Company and public
officials. References to the Final Prospectus in this paragraph (b)
include any supplements thereto at the Closing Date.
The opinion of Xxxxxx & Bird LLP shall also contain a
statement to the effect that on the basis of information which was
reviewed in the course of performing the services referred to in their
opinion considered in the light of their understanding of the
applicable law (including the requirements of Form S-3 and the
character of the prospectus contemplated thereby) and the experience
they have gained through their practice under the Act, such counsel
believe that each part of the Registration Statement, when such part
became effective, and the Final Prospectus, as of the date of the Final
Prospectus, appeared on their face to be appropriately responsive, in
all material respects relevant to the offering of the Securities, to
the requirements of the Act and the Commission's rules thereunder; and
nothing came to their attention in the course of their
review has caused them to believe that any part of the Registration
Statement (excluding any prospectus supplement with respect to an
offering of securities other than the offering of the Securities
contemplated hereby), when such part became effective, contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus, as of the date of
the Final Prospectus, contained any untrue statement of a material fact
or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; also, nothing that has come to such
counsel's attention in the course of certain procedures (as described
in such opinion) that has caused such counsel to believe that the Final
Prospectus, as of the date and time of delivery of such letter,
contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that such opinion may state that the
limitations inherent in the independent verification of factual matters
and the character of determinations involved in the registration
process are such that such counsel does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Final Prospectus, and that it does
not express any opinion or belief as to the financial statements or
schedules or other financial data derived from accounting records
contained in the Registration Statement or the Final Prospectus.
(c) The Representatives shall have received from King &
Spalding, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date and addressed to the Representatives, with respect to
the issuance and sale of the Securities, the Registration Statement,
the Final Prospectus (together with any supplement thereto) and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chief Executive Officer or
the President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Final Prospectus, any supplements to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing
Date and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus (exclusive of any supplement
thereto), there has been no material adverse effect on the
condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(e) The Company shall have requested and caused Xxxxxx
Xxxxxxxx LLP to have furnished to the Representatives, at the Execution
Time and at the Closing Date, letters (which may refer to letters
previously delivered to one or more of the Representatives), dated
respectively as of the Execution Time and as of the Closing Date, in
form and substance satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable rules and regulations
adopted by the Commission, and stating in effect, except as provided in
Schedule I hereto, that:
(i) in their opinion the audited financial statements
and financial statement schedules included or incorporated by
reference in the Registration Statement and the Final
Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related rules and
regulations adopted by the Commission;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; carrying out certain specified
procedures (but not an examination in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of
the meetings of the stockholders, directors and audit and
compensation committees of the Company and the Subsidiaries;
and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events
subsequent to December 31, 2001, nothing came to their
attention which caused them to believe that:
(1) any unaudited financial statements
included or incorporated by reference in the
Registration Statement and the Final Prospectus do
not comply as to form in all material respects with
applicable accounting requirements of the Act and
with the related rules and regulations adopted by the
Commission with respect to financial statements
included or incorporated by reference in quarterly
reports on Form 10-Q under the Exchange Act; and said
unaudited financial statements are not in conformity
with generally accepted accounting principles applied
on a basis substantially consistent with that of the
audited financial statements included or incorporated
by reference in the Registration Statement and the
Final Prospectus;
(2) with respect to the period subsequent to
December 31, 2001, there were any changes, at a
specified date not more than five days prior
to the date of the letter, in the consolidated total
debt of the Company and its subsidiaries or capital
stock of the Company or decreases in consolidated
assets or the shareholders' equity of the Company as
compared with the amounts shown on the December 31,
2001 consolidated balance sheet included or
incorporated by reference in the Registration
Statement and the Final Prospectus, or for the period
from January 1, 2002, to such specified date there
were any decreases, as compared with December 31,
2000, in total revenues or in the total or per share
amounts of income before extraordinary items or of
net income of the Company and its subsidiaries,
except in all instances for changes or decreases set
forth in such letter, in which case the letter shall
be accompanied by an explanation by the Company as to
the significance thereof unless said explanation is
not deemed necessary by the Representatives;
(3) the information included or incorporated
by reference in the Registration Statement and Final
Prospectus in response to Regulation S-K, Item 301
(Selected Financial Data), Item 302 (Supplementary
Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to
Fixed Charges) is not in conformity with the
applicable disclosure requirements of Regulation S-K;
and
(4) the unaudited amounts of total revenues,
total income before extraordinary items or net income
do not agree with the amounts set forth in the
unaudited financial statements for the same periods
or were not determined on a basis substantially
consistent with that of the corresponding amounts in
the audited financial statements included or
incorporated by reference in the Registration
Statement and the Final Prospectus; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus and in Exhibit 12 to the
Registration Statement, including the information set forth
under the captions "Recent Developments" and "Capitalization"
in the Final Prospectus, the information included or
incorporated by reference in Items 1, 2, 6, 7 and 11 of the
Company's Annual Report on Form 10-K, incorporated by
reference in the Registration Statement and the Final
Prospectus, agrees with the accounting records of the Company
and its subsidiaries, excluding any questions of legal
interpretation.
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof)
and the Final Prospectus (exclusive of any supplement thereto), there
shall not have been (i) any change or decrease specified in the letter
or letters referred to in paragraph (e) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto) the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the sole
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of
the Securities as contemplated by the Registration Statement (exclusive
of any amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(g) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
(h) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
(i) The Securities shall have been approved for listing on the
New York Stock Exchange, subject to official notice of issuance and
satisfactory evidence of such actions shall have been provided to the
Representatives.
(j) At the Closing, the Company shall have furnished to the
Representatives a letter substantially in the form of Annex II hereto
from each director and executive officer of the Company.
If any of the conditions specified in this Section 6 shall not
have been fulfilled when and as provided in this Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement shall
not be reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of King & Spalding, counsel for the Underwriters, at
000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally
through Xxxxxxx Xxxxx Xxxxxx Inc. on demand for all reasonable out-of-pocket
expenses (including reasonable fees and disbursements of counsel) up to $200,000
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter, but only
with reference to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page regarding delivery of the
Securities and, under the heading "Underwriting" or "Plan of Distribution", (i)
the list of Underwriters and their respective participation in the sale of the
Securities, (ii) the sentences related to concessions and reallowances and (iii)
the paragraph related to stabilization, syndicate covering transactions and
penalty bids in any Preliminary Final Prospectus and the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Final Prospectus or the
Final Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not
otherwise learn of such action and such failure materially prejudices the
indemnifying party and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (plus one
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional,
irrevocable release of each indemnified party from all liability arising out of
such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such Underwriter
hereunder in each case as set forth in the Final Prospectus under the caption
"Underwriting". If the allocation provided by the immediately preceding sentence
is unavailable for any reason, the Company and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
of the Underwriters on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions. Relative fault shall be determined
by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 9, the Closing Date shall be postponed for such period,
not exceeding five Business Days, as the Representatives shall determine in
order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Company's Common Stock shall have
been suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to proceed
with the offering or delivery of the Securities as contemplated by the Final
Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7, 8 and 9 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to the Xxxxxxx Xxxxx Barney Inc. General Counsel
(fax no.: (000) 000-0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx
Xxxxxx Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
General Counsel; or, if sent to the Company, will be mailed, delivered or
telefaxed to IRT Property Company, Attention: Chief Financial Officer (Fax No.
(000) 000-0000) and confirmed to it at 000 Xxxxxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxx 00000, Attention: Chief Financial Officer.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to
such rules under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
IRT Property Company
By: /s/ Xxxxx X. Xxxx
-----------------------------
Name: Xxxxx X. Xxxx
Title: Chief Financial Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
Xxxxxxx Xxxxx Barney Inc.
Xxxxxxx Xxxxx & Associates, Inc.
By: Xxxxxxx Xxxxx Barney Inc.
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated April 29, 2002
Registration Statement No. 333-53638
Representatives: Xxxxxxx Xxxxx Xxxxxx, Inc.
Xxxxxxx Xxxxx & Associates, Inc.
Title, Purchase Price and Description of Securities:
Title: Common Stock
Number of Securities to be sold by the Company: 3,000,000
Price to Public per Share (include accrued dividends, if any): $11.79
Price to Public -- total: $35,370,000.00
Underwriting Discount per Share: $0.60
Underwriting Discount -- total: $1,800,000.00
Proceeds to Company per Share: $11.19
Proceeds to Company -- total: $33,570,000.00
Other provisions: NONE
Closing Date, Time and Location: May 3, 2002 at 10:00 a.m. at the offices of
King & Spalding, 000 Xxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000.
Type of Offering: Non-Delayed
Date referred to in Section 5(f) after which the Company may offer or sell
securities issued or guaranteed by the Company without the consent of the
Representative(s): June 13, 2002 (45 days after the date of this Agreement)
Modification of items to be covered by the letter from
Xxxxxx Xxxxxxxx LLP delivered pursuant to
Section 6(e) at the Execution Time: NONE
SCHEDULE II
NUMBER OF UNDERWRITTEN SECURITIES TO BE
UNDERWRITERS PURCHASED
------------ ---------
Xxxxxxx Xxxxx Barney Inc. 1,500,000
Xxxxxxx Xxxxx &
Associates, Inc. 1,500,000
---------
Total ............ 3,000,000
=========
ANNEX I
IRT PROPERTY CORPORATION
SUBSIDIARY LISTING FOR 5% OR GREATER BENEFICIAL OWNERSHIP
ENTITY NAME APPROXIMATE OWNERSHIP STATE OF INCORPORATION TYPE
----------- --------------------- ---------------------- ----
IRT Partners L.P. 94% Georgia Partnership
IRT Management Corporation 100% Georgia Corporation
IRT Capital Corporation II (1) 100% Georgia Corporation
VW Mall, Inc. (2) 100% Georgia QRS
IRT Alabama, Inc. (2) 100% Alabama QRS
IRT Heritage Walk, LLC (3) 100% Delaware LLC
IRT MacLand Pointe, LLC (3) 100% Delaware LLC
IRT Coral Springs, LLC (3) 94% Delaware LLC
IRT Parkwest Crossing, LLC (3) 94% North Carolina LLC
(1) The Company elected TRS status on 3/15/01 effective 1/01/01.
(2) These entities are Qualified REIT Subsidiaries ("QRS").
(3) IRT Heritage Walk and IRT MacLand Pointe were established on 2/22/01
and are 100% beneficially owned by IRT Property Company ("IRT"). IRT Coral
Springs was established on 2/22/01 and is 94% beneficially owned by IRT. IRT
Parkwest Crossing, LLC was established on 1/28/02 and is 94% beneficially owned
by IRT. Each of these entities is a bankruptcy remote entity.
ANNEX II
IRT Property Company
Public Offering of Common Stock
April 29, 2002
Xxxxxxx Xxxxx Barney, Inc.
Xxxxxxx Xxxxx & Associates, Inc.
As Representatives of the several Underwriters
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between IRT Property
Company, a Georgia corporation (the "Company"), and each of you as
representatives of a group of Underwriters named therein, relating to an
underwritten public offering of Common Stock, $1.00 par value (the "Common
Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge or
otherwise dispose of, (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned or any person
in privity with the undersigned or any affiliate of the undersigned), directly
or indirectly, including the filing (or participation in the filing) of a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period of 45 days after the date
of the Underwriting Agreement, other than shares of Common Stock disposed of as
bona fide gifts approved by Xxxxxxx Xxxxx Barney Inc. and except for the
exercise (including cashless exercises) of stock options by officers and
directors.
If for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement), the agreement
set forth above shall likewise be terminated.
Very truly yours,
------------------------------
Name:
Title:
