Exhibit 4.17
EQUITY ONE, INC.
ISSUER,
THE
GUARANTORS
SET FORTH ON THE SIGNATURE PAGES ATTACHED HERETO
AND
SUNTRUST BANK, AS
TRUSTEE
—————————————————
SUPPLEMENTAL INDENTURE NO. 8
DATED AS OF DECEMBER 30, 2005
—————————————————
GUARANTEE OF SENIOR DEBT SECURITIES
SUPPLEMENTAL INDENTURE NO. 8, dated as of December 30, 2005 (this “Supplemental Indenture”), among Equity One, Inc., a corporation duly organized and existing under the laws of the State of Maryland (the “Company”), each of the Guarantors set forth on the signature pages attached hereto (the “Guarantors”), and SunTrust Bank (formerly known as SunTrust Bank, Atlanta), a Georgia banking corporation duly organized and existing under the laws of the State of Georgia, as Trustee (the “Trustee”).
R E C I T A L S
WHEREAS, the Company, as successor by merger to IRT Property Company, and the Trustee have heretofore entered into an Indenture dated as of September 9, 1998 (the “Original Indenture” and as amended, supplemented or otherwise modified through the date hereof, the “Indenture”), 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. 333-106909), providing for the issuance from time to time of senior debt securities of the Company (“Securities”);
WHEREAS, the Guarantors will provide the guaranty herein set forth (the “Guaranty”) of the Obligations (as defined herein);
WHEREAS, Sections 901(6) and 901(10) of the Indenture permit the Company and the Trustee to enter into indentures supplemental thereto without the consent of any Holder of Securities to evidence the Guaranty of each Guarantor and 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, each Guarantor has determined that its execution, delivery and performance of this Supplemental Indenture directly benefits, and are within the 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 (or equivalent governing body) of each Guarantor has duly adopted resolutions authorizing such 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 Company and each Guarantor agrees as follows:
1
ARTICLE ONE
DEFINITIONS
(a) capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Indenture;
(b) all references herein to Articles and Sections refer to the corresponding Articles and Sections of this Supplemental Indenture; and
(c) as used herein the following terms have the following meanings:
“Guaranteed Securities” means all Securities issued under the Indenture as of the date hereof.
“Obligations” means (x) all payment and performance obligations of the Company (i) under the Indenture with respect to the Guaranteed Securities, (ii) under the Guaranteed Securities and (iii) as a result of the issuance of the Guaranteed Securities and (y) 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 Guaranteed Securities or (ii) the Guaranteed Securities.
ARTICLE TWO
GUARANTY
2
SECTION 2.4. Dealings With the Company. The Company, the Trustee and the Holders, or any of them, may, from time to time, without exonerating or releasing any 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, as the Trustee and the Holders, or any of them, may deem proper, consistent with the Indenture, 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 Guaranteed Securities, all as the Company, 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 Company, the Trustee and the Holders, or any of them, may, without exonerating or releasing any 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 any Guarantor.
3
4
(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 (other than a distribution made in respect of the Guaranteed Securities), and the Guarantors 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
(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 whatever 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.
5
6
As of any date of determination, the “Allocable Amount” of each Contributing Party shall be equal to the maximum amount of liability which could be asserted against such Contributing Party hereunder with respect to the applicable Guarantor Payment without (i) rendering such Contributing Party “insolvent” within the meaning of Section 101(31) of the Federal Bankruptcy Code (the “Bankruptcy Code”) or Section 2 of either the Uniform Fraudulent Transfer Act (the “UFTA”) or the Uniform Fraudulent Conveyance Act (the “UFCA”), (ii) leaving such Contributing Party with unreasonably small capital, within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA or Section 5 of the UFCA, or (iii) leaving such Contributing Party unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA or Section 6 of the UFCA or in any case, any successor to the Bankruptcy Code or any such section thereof or any successor to the UFTA or the UFCA or any such sections thereof.
This Section 2.14 is intended only to define the relative rights of the Contributing Parties, and nothing set forth in this Agreement is intended to or shall impair the obligations of the Guarantors, jointly and severally, to pay any amounts, as and when the same shall become due and payable in accordance with the terms of the Guaranty.
The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets in favor of each Guarantor to which such contribution and indemnification is owing.
This Section 2.14 shall continue in full force and effect and may not be terminated or otherwise revoked by any Contributing Party until all of the Guaranteed Obligations shall have been indefeasibly paid in full (in lawful money of the United States of America) and discharged and the Indenture and Guaranteed Securities shall have been terminated.
7
ARTICLE THREE
MISCELLANEOUS PROVISIONS
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.
SECTION 3.8. Rights and Duties of Trustee. The rights and duties of the Trustee shall be determined by the express provisions of the Original Indenture and, except as expressly set forth in this Supplemental Indenture, nothing in this Supplemental Indenture shall in any way modify or otherwise affect the Trustee’s rights and duties thereunder. The Trustee makes no representation or warranty as to the validity of this Supplemental Indenture and, except insofar as relates to the validity hereof with respect to the Trustee specifically, the Trustee shall not be liable in connection therewith. The Trustee makes no representation or warranty, express or implied, as to the accuracy or completeness of any information contained in any offering or disclosure document related to the sale of the Securities, except for such information that specifically pertains to the Trustee itself, or any information incorporated therein by reference.
8
SECTION 3.9. Amendment and Waiver. This Supplemental Indenture shall not be amended unless such amendment (i) complies with the terms of the Indenture, (ii) is in writing and (iii) is executed by each of the parties hereto. 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.
SECTION 3.10. Conflicts. In the event of any conflict between the terms of this Supplemental Indenture and the terms of the Indenture, the terms of this Supplemental Indenture shall control.
[Signatures on Next Page]
9
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.
EQUITY ONE, INC., Issuer | ||
By: | /s/ Chaim Katzman | |
Name: | Chaim Katzman | |
Title: | Chairman and Chief Executive Officer | |
Address: | ||
1600 N.E. Miami Gardens Drive | ||
Miami, Florida 33179 | ||
Attention: Chief Financial Officer | ||
GUARANTORS | ||
Equity One Realty & Management SE, Inc. | ||
Equity One (Louisiana Portfolio) LLC | ||
Equity One (Quincy Project) LLC | ||
Equity One (Sunlake) Inc. | ||
Equity (Texas Holdings) One GP LLC | ||
Equity One (Young Circle) Inc. | ||
Louisiana Holding Corp. | ||
Equity One (Northeast Portfolio) Inc. | ||
Equity One (Southeast Portfolio) Inc. | ||
By: | /s/ Chaim Katzman | |
Chaim Katzman | ||
President | ||
Equity (Texas) One Creekside LP | ||
By: Equity (Texas Holdings) One GP LLC, its general partner | ||
By: | s/ Chaim Katzman | |
Chaim Katzman | ||
President |
10
Equity (Texas) One Creekside Phase II LP | ||
By: Equity (Texas Holdings) One GP LLC, its general partner | ||
By: | s/ Chaim Katzman | |
Chaim Katzman | ||
President | ||
Equity (Texas) One Desoto LP | ||
By: Equity (Texas Holdings) One GP LLC, its general partner | ||
By: | s/ Chaim Katzman | |
Chaim Katzman | ||
President | ||
Equity (Texas) One Village Center LP | ||
By: Equity (Texas Holdings) One GP LLC, its general partner | ||
By: | s/ Chaim Katzman | |
Chaim Katzman | ||
President | ||
Equity (Texas) One Westgate Phase III LP | ||
By: Equity (Texas Holdings) One GP LLC, its general partner | ||
By: | s/ Chaim Katzman | |
Chaim Katzman | ||
President |
11
SUNTRUST BANK, as Trustee | ||
By: | George Hogan | |
Name: | George Hogan | |
Title: | Vice President |
12