Exhibit 4.1
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Execution Version
Equity One, Inc.
Issuer,
the
Guarantors
SET FORTH ON THE SIGNATURE PAGES ATTACHED HERETO
and
SUNTRUST BANK, as
Trustee
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Supplemental Indenture No. 4
Dated as of March 26, 2004
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$200,000,000
3.875% SENIOR NOTES DUE 2009
SUPPLEMENTAL INDENTURE NO. 4, dated as of March 26, 2004 (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;
WHEREAS, Section 901(7) of the Indenture permits the Company and the
Trustee to enter into an indenture supplemental to the Indenture to establish
the form or terms of Securities of any series as provided by Sections 201 and
301 of the Indenture;
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 benefit, 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:
ARTICLE ONE
DEFINITIONS
SECTION 1.1. Definitions. For all purposes of this Supplemental Indenture,
except as otherwise expressly provided for or unless the context otherwise
requires:
(a) capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Indenture; and
(b) all references herein to Articles and Sections refer to the
corresponding Articles and Sections of this Supplemental Indenture.
(c) as used herein the following terms have the following meanings:
"Acquired Debt" means Debt of a Person (i) existing at the time such Person
becomes a Subsidiary or (ii) assumed in connection with the acquisition of
assets from such Person, in each case, other than Debt incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary or such
acquisition. Acquired Debt shall be deemed to be incurred on the date of the
related acquisition of assets from any Person or the date the acquired Person
becomes a Subsidiary.
"Annual Service Charge" for any period means the maximum amount which is
payable during such period for interest on, and the amortization during such
period of any original issue discount of, Debt of the Company and its
Subsidiaries and the amount of dividends which are payable during such period in
respect of any Disqualified Stock.
"Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in the City of
New York or in the City of Atlanta are authorized or required by law, regulation
or executive order to close.
"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interest, participations or other ownership
interest (however designated) of such Person and any rights (other than debt
securities convertible into or exchangeable for capital stock), warrants or
options to purchase any thereof.
"Consolidated Income Available for Debt Service" for any period means
Earnings from Operations of the Company and its Subsidiaries plus amounts which
have been deducted, and minus amounts which have been added, for the following
(without duplication): (a) interest on Debt of the Company and its Subsidiaries,
(b) provision for taxes of the Company and its Subsidiaries based on income, (c)
amortization of debt discount, (d) provisions for gains and losses on properties
and property depreciation and amortization, (e) the effect of any noncash charge
resulting from a change in accounting principles in determining Earnings from
Operations for such period and (f) amortization of deferred charges.
"Debt" of the Company or any Subsidiary means any indebtedness (without
duplication) of the Company or any Subsidiary, whether or not contingent, in
respect of (i) money borrowed or evidenced by bonds, notes, debentures or
similar instruments, (ii) indebtedness for borrowed money secured by any
mortgage, lien, charge, pledge, or security interest of any kind existing on
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property owned by the Company or any Subsidiary (each securing such debt, an
"Encumbrance"), (iii) the reimbursement obligations, contingent or otherwise, in
connection with any letters of credit actually issued or amounts representing
the balance deferred and unpaid of the purchase price of any property or
services, except any such balance that constitutes an accrued expense or trade
payable, or all conditional obligations or obligations under any title retention
agreement, (iv) the principal amount of all obligations of the Company or any
Subsidiary with respect to redemption, repayment or other repurchase of any
Disqualified Stock or (v) any lease of property by the Company or any Subsidiary
as lessee which is reflected on the Company's consolidated balance sheet as a
capitalized lease in accordance with GAAP, to the extent, in the case of items
of indebtedness under (i) through (iii) above, that any such items (other than
letters of credit) would appear as a liability on the Company's consolidated
balance sheet in accordance with GAAP, and also includes, to the extent not
otherwise included, any obligations by the Company or any Subsidiary to be
liable for, or to pay, as obligor, guarantor or otherwise (other than for
purposes of collection in the ordinary course of business), Debt of another
Person (other than the Company or any Subsidiary) (it being understood that Debt
shall be deemed to be incurred by the Company or any Subsidiary whenever the
Company or such Subsidiary shall create, assume, guarantee or otherwise become
liable in respect thereof).
"Disqualified Stock" means, with respect to any Person, any Capital Stock
of such Person which by the terms of such Capital Stock (or by the terms of any
security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise
(other than Capital Stock which is redeemable solely in exchange for common
stock), (ii) is convertible into or exchangeable or exercisable for Debt or
Disqualified Stock or (iii) is redeemable at the option of the holder thereof,
in whole or in part (other than Capital Stock which is redeemable solely in
exchange for common stock), in each case on or prior to the Stated Maturity of
the Notes.
"Earnings from Operations" for any period means net income excluding gains
and losses on sales of investments, extraordinary items, and net property
valuation losses, as reflected in the financial statements of the Company and
its Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP.
"Encumbrance" has the meaning specified in the definition of "Debt" set
forth in this Section 1.1.
"Financial Statements" has the meaning specified in Section 1009 of the
Indenture.
"Guaranteed Securities" means the Notes issued pursuant to this
Supplemental Indenture.
"Make-Whole Amount" means, in connection with any optional redemption or
accelerated payment of any Notes, the excess, if any, of (i) the aggregate
present value as of the date of such redemption or accelerated payment of each
Dollar of principal being redeemed or paid and the amount of interest (exclusive
of interest accrued to the date of redemption or accelerated payment) that would
have been payable in respect of each such Dollar if such redemption or
accelerated payment had not been made, determined by discounting, on a
semi-annual basis (on the basis of a 360-day year consisting of twelve 30-day
months), such principal
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and interest at the Reinvestment Rate (determined on the third Business Day
preceding the date such notice of redemption is given or declaration of
acceleration is made) from the respective dates on which such principal and
interest would have been payable if such redemption or accelerated payment had
not been made to the date of redemption or accelerated payment, over (ii) the
aggregate principal amount of the Notes being redeemed or paid.
"Notes" has the meaning specified in Section 2.1 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.
"Redemption Price" has the meaning specified in Section 2.5 hereof.
"Reinvestment Rate" means 0.20% (one fifth of one percent) plus the
arithmetic mean of the yields under the heading "Week Ending" published in the
most recent Statistical Release under the caption "Treasury Constant Maturities"
for the maturity (rounded to the nearest month) corresponding to the remaining
life to maturity, as of the payment date of the principal being redeemed or
paid. If no maturity exactly corresponds to such maturity, yields for the two
published maturities most closely corresponding to such maturity shall be
calculated pursuant to the immediately preceding sentence and the Reinvestment
Rate shall be interpolated or extrapolated from such yields on a straight-line
basis, rounding in each of such relevant periods to the nearest month. For the
purposes of calculating the Reinvestment Rate, the most recent Statistical
Release published prior to the date of determination of the Make-Whole Amount
shall be used.
"Statistical Release" means the statistical release designated "H.15(519)"
or any successor publication which is published weekly by the Board of Governors
of the Federal Reserve System and which reports yields on actively traded United
States government securities adjusted to constant maturities, or, if such
statistical release is not published at the time of any determination hereunder,
then such other reasonably comparable index which shall be designated by the
Company.
"Subsidiary" means (i) a corporation, partnership, joint venture, limited
liability company or other Person the majority of the shares, if any, of the
nonvoting capital stock or other equivalent ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly owned by
the Company and/or any other Subsidiary or Subsidiaries, and the majority of the
shares of the voting capital stock or other equivalent ownership interests of
which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Company and/or any other Subsidiary or Subsidiaries and
(ii) any Person the accounts of which are consolidated with the Company's
accounts.
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"Total Assets" as of any date means the sum of (i) the Undepreciated Real
Estate Assets and (ii) all other assets of the Company and its Subsidiaries
determined in accordance with GAAP (but excluding accounts receivable and
intangibles).
"Total Unencumbered Assets" means the sum of (i) those Undepreciated Real
Estate Assets not subject to an Encumbrance for borrowed money and (ii) all
other assets of the Company and its Subsidiaries not subject to an Encumbrance
for borrowed money determined in accordance with GAAP (but excluding accounts
receivable and intangibles).
"Undepreciated Real Estate Assets" as of any date means the cost (original
cost plus capital improvements) of real estate assets of the Company and its
Subsidiaries on such date, before depreciation and amortization determined on a
consolidated basis in accordance with GAAP.
"Unsecured Debt" means Debt which is not secured by any Encumbrance upon
any of the properties of the Company or any Subsidiary
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1. Title of the Securities.
There shall be a series of Securities designated the 3.875% Senior Notes
due 2009 (the "Notes").
SECTION 2.2. Limitation on Aggregate Principal Amount.
The aggregate principal amount of the Notes shall be limited to
$200,000,000 (the "Initial Original Principal Amount"). Notwithstanding the
foregoing, the Company, without the consent any Holders of Securities or
coupons, by Board Resolutions or indentures supplemental to the Indenture from
time to time may reopen such series of Notes and issue additional Notes in an
aggregate principal amount as set forth in any such Board Resolution or
indenture supplemental to the Indenture which additional Notes shall be fungible
with any previously issued Notes to the extent set forth in such Board
Resolutions or indenture supplemental to the Indenture. Except as provided in
this Section, any such Board Resolutions or indentures supplemental to the
Indenture and in Section 306 of the Indenture, the Company shall not execute and
the Trustee shall not authenticate or deliver Notes in excess of the Initial
Original Principal Amount.
Nothing contained in this Section 2.2 or elsewhere in this Supplemental
Indenture, or in the Notes, is intended to or shall limit execution by the
Company or authentication or delivery by the Trustee of the Notes under the
circumstances contemplated in Sections 303, 304, 306, 906 and 1305 of the
Indenture.
SECTION 2.3. Interest and Interest Rates; Maturity Date of Notes.
The Notes will bear interest at a rate of 3.875% per annum from March 26,
2004 or from the immediately preceding Interest Payment Date to which interest
has been paid or duly provided for, payable semi-annually in arrears on April 15
and October 15 of each year,
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commencing October 15, 2004 (each, an "Interest Payment Date"), to the Person in
whose name such Note is registered at the close of business on April 1 or
October 1 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date (each, a "Regular Record Date"). Interest will be
computed on the basis of a 360-day year composed of twelve 30-day months. The
interest so payable on any Note which is not punctually paid or duly provided
for on any Interest Payment Date shall forthwith cease to be payable to the
Person in whose name such Note is registered on the relevant Regular Record
Date, and such Defaulted Interest shall instead be payable to the Person in
whose name such Note is registered on the Special Record Date or other specified
date determined in accordance with the Indenture.
If any Interest Payment Date or Maturity falls on a day that is not a
Business Day, the required payment shall be made on the next Business Day as if
it were made on the date such payment was due and no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date
or Maturity, as the case may be.
The Notes will mature on April 15, 2009.
SECTION 2.4. Limitations on Incurrence of Debt.
(a) The Company will not, and will not permit any Subsidiary to, incur
any Debt if, immediately after giving effect to the incurrence of such
additional Debt and the application of the proceeds thereof, the aggregate
principal amount of all outstanding Debt of the Company and its Subsidiaries on
a consolidated basis determined in accordance with GAAP is greater than 60% of
the sum of (without duplication) (i) the Total Assets of the Company and its
Subsidiaries as of the end of the latest calendar quarter covered in the
Company's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the
case may be, most recently filed with the Commission (or, if such filing is not
permitted under the Exchange Act, with the Trustee) prior to the incurrence of
such additional Debt and (ii) the purchase price of any real estate assets or
mortgages receivable acquired, and the amount of any securities offering
proceeds received (to the extent such proceeds were not used to acquire real
estate assets or mortgages receivable or used to reduce Debt), by the Company or
any Subsidiary since the end of such calendar quarter, including those proceeds
obtained in connection with the incurrence of such additional Debt.
(b) In addition to the limitation set forth in subsection (a) of this
Section 2.4, the Company will not, and will not permit any Subsidiary to, incur
any Debt if the ratio of Consolidated Income Available for Debt Service to the
Annual Service Charge for the four consecutive fiscal quarters most recently
ended prior to the date on which such additional Debt is to be incurred shall
have been less than 1.5:1, on a pro forma basis after giving effect thereto and
to the application of the proceeds therefrom, and calculated on the assumption
that (i) such Debt and any other Debt incurred by the Company and its
Subsidiaries since the first day of such four-quarter period and the application
of the proceeds therefrom, including to refinance other Debt, had occurred at
the beginning of such period; (ii) the repayment or retirement of any other Debt
by the Company and its Subsidiaries since the first day of such four-quarter
period had been repaid or retired at the beginning of such period (except that,
in making such computation, the amount of Debt under any revolving credit
facility shall be computed based upon the average daily balance of such Debt
during such period); (iii) in the case of Acquired Debt or Debt incurred in
connection with any acquisition since the first day of such four-quarter period,
the
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related acquisition had occurred as of the first day of such period with the
appropriate adjustments with respect to such acquisition being included in such
pro forma calculation; and (iv) in the case of any acquisition or disposition by
the Company or its Subsidiaries of any asset or group of assets since the first
day of such four-quarter period, whether by merger, stock purchase or sale, or
asset purchase or sale, such acquisition or disposition or any related repayment
of Debt had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition or disposition being included in
such pro forma calculation.
(c) In addition to the limitations set forth in subsections (a) and
(b) of this Section 2.4, the Company will not, and will not permit any
Subsidiary to, incur any Debt secured by any Encumbrance, if, immediately after
giving effect to the incurrence of such additional Debt and the application of
the proceeds thereof, the aggregate principal amount of all outstanding Debt of
the Company and its Subsidiaries on a consolidated basis which is secured by any
Encumbrance is greater than 40% of the sum of (without duplication) (i) the
Total Assets of the Company and its Subsidiaries as of the end of the latest
calendar quarter covered in the Company's Annual Report on Form 10-K or
Quarterly Report on Form 10-Q, as the case may be, most recently filed with the
Commission (or, if such filing is not permitted under the Exchange Act, with the
Trustee) prior to the incurrence of such additional Debt and (ii) the purchase
price of any real estate assets or mortgages receivable acquired, and the amount
of any securities offering proceeds received (to the extent that such proceeds
were not used to acquire real estate assets or mortgages receivable or used to
reduce Debt), by the Company or any Subsidiary since the end of such calendar
quarter, including those proceeds obtained in connection with the incurrence of
such additional Debt.
(d) The Company and its Subsidiaries may not at any time own Total
Unencumbered Assets equal to less than 150% of the aggregate outstanding
principal amount of the Unsecured Debt of the Company and its Subsidiaries on a
consolidated basis.
(e) For purposes of this Section 2.4, Debt shall be deemed to be
"incurred" by the Company or a Subsidiary whenever the Company or such
Subsidiary shall create, assume, guarantee or otherwise become liable in respect
thereof.
SECTION 2.5. Optional Redemption.
(a) Subject to this Section 2.5, the Notes may be redeemed at any time
at the option and in the sole discretion of the Company, in whole or from time
to time in part, at a redemption price equal to the sum of (i) the principal
amount of the Notes being redeemed plus accrued interest thereon to the
redemption date and (ii) the Make-Whole Amount, if any, with respect to such
Notes (the "Redemption Price"). If (i) notice has been given as provided in
Sections 2.5(b) and (c) and (ii) funds for the redemption of any Notes called
for redemption shall have been made available as provided in the Indenture on
the redemption date referred to in such notice, such Notes will cease to bear
interest on the date fixed for such redemption specified in such notice, and the
only right of the Holders of the Notes will be to receive payment of the
Redemption Price upon surrender of the Notes in accordance with such notice.
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(b) Notice of any optional redemption of any Notes will be given to
Holders at their addresses, as shown in the Security Register, not more than 60
nor less than 30 days prior to the date fixed for redemption. The notice of
redemption will specify, in addition to the items required by the Indenture, the
Redemption Price and the principal amount of the Notes held by each Holder to be
redeemed.
(c) If less than all the Notes are to be redeemed at the option and in
the sole discretion of the Company, the Company will notify the Trustee in
writing at least 45 days prior to giving the notice of redemption required by
Section 2.5(b) (or such shorter period as is satisfactory to the Trustee) of the
aggregate principal amount of Notes to be redeemed and their redemption date.
The Trustee shall select not more than 60 days prior to the redemption date, in
such manner as it shall deem fair and appropriate, in its sole discretion, Notes
to be redeemed in whole or in part.
SECTION 2.6. Places of Payment.
The Places of Payment where the Notes may be presented or surrendered for
payment, where the Notes may be surrendered for registration of transfer or
exchange and where notices and demands to and upon the Company in respect of the
Notes and the Indenture may be served shall be in (i) the Borough of Manhattan,
The City of New York, New York, and the office or agency for such purpose shall
initially be Computershare Trust Company, Wall Street Plaza, 88 Pine Street,
19th Floor, New York, New York 10005 and (ii) the City of Atlanta, Georgia, and
the office or agency for such purpose shall initially be located at SunTrust
Bank, 25 Park Place, N.E., 24th Floor, Atlanta, Georgia 30303-2900.
SECTION 2.7. Method of Payment.
Payment of the principal of and interest on the Notes will be made at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York (which shall initially be an office or agency of
the Trustee), in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company, payments of principal and
interest on the Notes may be made (i) by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or
(ii) by wire transfer to an account maintained by the Person entitled thereto
located inside the United States.
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SECTION 2.8. Currency.
Principal and interest on the Notes shall be payable in Dollars.
SECTION 2.9. Registered Securities; Global Form.
The Notes shall be issuable and transferable in fully registered form as
Registered Securities, without coupons. The Notes shall be issued in the form of
one or more permanent global Securities. The depositary for the Notes shall be
DTC. The Notes shall not be issuable in definitive form except as provided in
Section 305 of the Indenture.
SECTION 2.10. Form of Notes.
The Notes shall be substantially in the form attached as Exhibit A
hereto.
SECTION 2.11. Security Registrar and Paying Agent.
The Trustee shall initially serve as Security Registrar and Paying
Agent for the Notes.
SECTION 2.12. Defeasance.
The provisions of Sections 1402 and 1403 of the Indenture, together with
the other provisions of Article XIV of the Indenture, shall be applicable to the
Notes. The provisions of Section 1403 of the Indenture shall apply to the
covenants set forth in Section 2.4 of this Supplemental Indenture.
ARTICLE three
GUARANTY
SECTION 3.1. Guaranty. Each Guarantor hereby unconditionally guarantees to
the Trustee and the Holders full and prompt payment and performance when due,
whether at maturity, by acceleration or otherwise, of all Obligations. Each
Obligation shall rank pari passu with each other Obligation.
SECTION 3.2. Obligations Several. Regardless of whether any proposed
Guarantor or any other Person or Persons is, are or shall become in any other
way responsible to the Trustee and the Holders, or any of them, for or in
respect of the Obligations or any part thereof, and regardless of whether or not
any Person or Persons now or hereafter responsible to the Trustee and the
Holders, or any of them, for the Obligations or any part thereof, whether under
the Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby
declares and agrees that the Guaranty provided thereby is and shall continue to
be a several obligation (as well as a joint one), shall be a continuing guaranty
and shall be operative and binding on such Guarantor. Each Guarantor hereby
agrees that it will not exercise any rights which it may acquire by way of
subrogation under the Guaranty, by any payment made hereunder or otherwise,
unless and until all of the Obligations shall have been paid in full. If any
amount shall be paid to any Guarantor on account of such subrogation rights at
any time when all of the Obligations shall not have been paid in full, such
amount shall be held in trust for the benefit of the Trustee and the Holders and
shall forthwith be paid to the Trustee to be credited and applied upon the
Obligations, whether
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matured or unmatured, in accordance with the terms of the Indenture, but subject
to the provisions of Section 3.7 hereof.
SECTION 3.3. Guaranty Final. Upon the execution and delivery of this
Supplemental Indenture by the parties hereto, this Supplemental Indenture shall
be deemed to be finally executed and delivered by the parties hereto and shall
not be subject to or affected by any promise or condition affecting or limiting
any Guarantor's liability, and no statement, representation, agreement or
promise on the part of the Trustee, the Holders, the Company, or any of them, or
any officer, employee or agent thereof, unless contained herein forms any part
of this Supplemental Indenture or has induced the making hereof or shall be
deemed in any way to affect any Guarantor's liability hereunder. The Guarantors'
obligations hereunder shall remain in full force and effect until all
Obligations shall have been paid in full.
SECTION 3.4. 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 3.5 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.
SECTION 3.5. Guaranty Unconditional. Each Guarantor acknowledges and agrees
that no change in the nature or terms of the Obligations, the Indenture or the
Guaranteed Securities, or other agreements, instruments or contracts evidencing,
related to or attendant with the Obligations (including any novation), nor any
determination of lack of enforceability thereof, shall discharge all or any part
of the liabilities and obligations of such Guarantor pursuant to the Guaranty;
it being the purpose and intent of the Guarantors, the Company, the Trustee and
the Holders that the covenants, agreements and all liabilities and obligations
of the Guarantors hereunder are absolute, unconditional and irrevocable under
any and all circumstances. Without limiting the generality of the foregoing,
each Guarantor agrees that until each and every one of the covenants and
agreements of this Supplemental Indenture is fully performed, such Guarantor's
undertakings hereunder shall not be released, in whole or in part, by any action
or thing which might, but for this Section 3.5, be deemed a legal or equitable
discharge of a surety or guarantor, or by reason of any waiver or omission of
the Company, the Trustee and the Holders, or any of them, or their failure to
proceed promptly or otherwise, or by reason of any action taken or omitted by
the Company, the Trustee and the Holders, or any of them, whether or
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not such action or failure to act varies or increases the risk of, or affects
the rights or remedies of, such Guarantor or by reason of any further dealings
among the Company, the Trustee and the Holders, or any of them, or any other
guarantor or surety, and each Guarantor hereby expressly waives and surrenders
any defense to its liability hereunder, or any right of counterclaim or offset
of any nature or description which it may have or which may exist based upon,
and shall be deemed to have consented to, any of the foregoing acts, omissions,
things, agreements or waivers.
SECTION 3.6. Bankruptcy. Each Guarantor agrees that upon the bankruptcy or
winding up or other distribution of assets of the Company or any Subsidiary of
the Company (other than such Guarantor) or of any other Guarantor or surety or
guarantor for the Obligations, the rights of the Trustee and the Holders, or any
of them, against such Guarantor shall not be affected or impaired by the
omission of the Trustee or the Holders, or any of them, to prove its or their
claim, as appropriate, or to prove its or their full claim, as appropriate, and
the Trustee and the Holders may prove such claims as they see fit and may
refrain from proving any claim and in their respective discretion they may value
as they see fit or refrain from valuing any security held by the Trustee and the
Holders, or any of them, without in any way releasing, reducing or otherwise
affecting the liability to the Trustee and the Holders of such Guarantor. If
acceleration of the time for payment of any amount payable by the Company under
the Indenture or the Guaranteed Securities of any series is stayed upon the
insolvency, bankruptcy or reorganization of the Company, all such amounts
otherwise subject to acceleration under the terms of the Indenture or the
Guaranteed Securities of that series shall nonetheless be payable by each
Guarantor hereunder forthwith on demand by the Trustee made at the written
request of the Holders of not less than 25% in principal amount of the
outstanding Guaranteed Securities of that series. If at any time any payment of
the principal of or interest on any Guaranteed Security or any other amount
payable by the Company under the Indenture is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of the
Company, any other Guarantor or otherwise, the Guarantors' obligations hereunder
with respect to such payment shall be reinstated as though such payment had been
due but not made at such time.
SECTION 3.7. Application of Payments. The Trustee hereby acknowledges and
agrees, and each Holder shall be deemed to hereby acknowledge and agree, that to
the extent any of the Existing Senior Obligations (as defined below) is then in
default, any funds, payments, claims or distributions (the "Guaranty Proceeds")
actually received hereunder shall be made available for distribution equally and
ratably (based on the principal amounts then outstanding) among (a) the holders
of the Obligations and (b) the holders of the Existing Senior Obligations. For
purposes hereof, "Existing Senior Obligations" shall mean Debt for borrowed
money owed or guaranteed in connection with any unsecured and non-subordinated
Debt for borrowed money of the Company or the Guarantor (aa) issued in offerings
registered under the Securities Act of 1933, as amended or in placements exempt
from registration pursuant to Rule 144A or Regulation S thereunder, or (bb)
otherwise incurred, which is, in either case, outstanding on the date hereof or
incurred hereafter in accordance with the Indenture (including, without
limitation, the Debt of the Company incurred in connection with the Credit
Agreement dated as of February 7, 2003, as amended or supplemented from time to
time, among the Company, Wells Fargo Bank, National Association, as
Administrative Agent under the Credit Agreement, and the lenders named therein,
and certain other lenders party thereto from time to time). This Section
11
3.7 shall not apply to any payments, funds, claims or distributions received by
the Trustee or any Holder directly or indirectly from the Company or any other
Person other than from the Guarantors hereunder. Each Guarantor acknowledges and
agrees with the Trustee and each Holder as follows:
(a) to the extent any Guaranty Proceeds are distributed to the holders
of the Existing Senior Obligations, the Obligations shall not be deemed reduced
by any such distribution (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.
SECTION 3.8. Waivers by Guarantors. Each Guarantor hereby expressly waives:
(a) notice of acceptance of the Guaranty, (b) notice of the existence or
creation of all or any of the Obligations, (c) presentment, demand, notice of
dishonor, protest, and all other notices whatsoever, (d) all diligence in
collection or protection of or realization upon the Obligations or any part
thereof, any obligation hereunder, or any security for any of the foregoing and
(e) all rights of subrogation, indemnification, contribution and reimbursement
against the Company, all rights to enforce any remedy the Trustee and the
Holders, or any of them, may have against the Company, and any benefit of, or
right to participate in, any collateral or security now or hereinafter held by
the Trustee and the Holders, or any of them, in respect of the Obligations, even
upon payment in full of the Obligations. Any money received by any Guarantor in
violation of this Section 3.8 shall be held in trust by such Guarantor for the
benefit of the Trustee and the Holders. If a claim is ever made upon the Trustee
and the Holders, or any of them, for the repayment or recovery of any amount or
amounts received by any of them in payment of any of the Obligations and the
Trustee or the Holders repays all or part of such amount by reason of (a) any
judgment, decree, or order of any court or administrative body having
jurisdiction over the Trustee or the Holders or any of its or their property, or
(b) any good faith settlement or compromise of any such claim effected by the
Trustee or the Holders with any such claimant, including the Company, then in
such event each Guarantor agrees that any such judgment, decree, order,
settlement, or compromise shall be binding upon such Guarantor, notwithstanding
any revocation hereof or the cancellation of any promissory note or other
instrument evidencing
12
any of the Obligations, and such Guarantor shall be and remain obligated to the
Trustee and the Holders hereunder for the amount so repaid or recovered to the
same extent as if such amount had never originally been received thereby.
SECTION 3.9. Remedies Cumulative. No delay by the Trustee and the Holders,
or any of them, in the exercise of any right or remedy shall operate as a waiver
thereof, and no single or partial exercise by the Trustee and the Holders, or
any of them, of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy. No action by the Trustee
and the Holders, or any of them, permitted hereunder shall in any way impair or
affect the Guaranty. For the purpose of the Guaranty, the Obligations shall
include, without limitation, all Obligations of the Company to the Trustee and
the Holders, notwithstanding any right or power of any third party, individually
or in the name of the Company or any other Person, to assert any claim or
defense as to the invalidity or unenforceability of any such Obligation, and no
such claim or defense shall impair or affect the obligations of any Guarantor
hereunder.
SECTION 3.10. Miscellaneous. The Guaranty is a guaranty of payment and not
of collection. In the event of a demand upon any Guarantor under the Guaranty,
such Guarantor shall be held and bound to the Trustee and the Holders directly
as debtor in respect of the payment of the amounts hereby guaranteed. All
reasonable costs and expenses, including attorneys' fees and expenses, incurred
by the Trustee and the Holders, or any of them, in obtaining performance of or
collecting payments due under the Guaranty shall be deemed part of the
Obligations guaranteed hereby. The provisions of the Guaranty are for the
benefit of the Trustee and the Holders and may not be relied upon or enforced by
any other Person and, as to enforcement, may only be enforced in accordance with
this Supplemental Indenture and the Indenture.
SECTION 3.11. Benefit to Guarantor. Each Guarantor expressly represents and
acknowledges that the issuance and sale of the Guaranteed Securities under the
Indenture has been, and will be, of direct interest, benefit and advantage to
such Guarantor.
SECTION 3.12. Solvency. Each Guarantor expressly represents and warrants
that as of the date hereof and after giving effect to the transactions
contemplated by the Indenture (a) the capital of such Guarantor will not be
unreasonably small to conduct its business; (b) such Guarantor will not have
incurred debts, or have intended to incur debts, beyond its ability to pay such
debts as they mature; and (c) the present fair salable value of the assets of
such Guarantor is greater than the amount that will be required to pay its
probable liabilities (including debts) as they become absolute and matured. For
purposes of this Section 3.12, "debt" means any liability on a claim, and
"claim" means (x) the right to payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
undisputed, legal, equitable, secured or unsecured, or (y) the right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, undisputed, secured or
unsecured.
SECTION 3.13. Additional Guarantors; Release of Guarantors. Any Subsidiary
of the Company or any other entity may become a party to this Guaranty by
executing and delivering
13
a Supplemental Indenture providing for a guaranty of the Obligations under the
terms of this Article Three, provided that such Supplemental Indenture conforms
to the requirements of Article Nine of the Indenture. Under certain
circumstances, a Guarantor may be released by the Trustee of its obligations
under this Guaranty. Each other Guarantor consents and agrees to any such
releases and agrees that no such release shall affect its obligations hereunder,
except as to the Guarantor so released.
SECTION 3.14. Contribution Agreement. To the extent that any Guarantor
shall, under the Guaranty, make a payment (a "Guarantor Payment") of a portion
of the Obligations, then, without limiting its rights of subrogation against the
Company, such Guarantor shall be entitled to contribution and indemnification
from, and be reimbursed by, each of the other Guarantors and the Company (each
of the foregoing referred to herein individually as a "Contributing Party" and
collectively as the "Contributing Parties") in an amount, for each such
Contributing Party, equal to a fraction of such Guarantor Payment, the numerator
of which fraction is such Contributing Party's Allocable Amount (as defined
below) and the denominator of which is the sum of the Allocable Amounts of all
of the Contributing Parties.
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 3.14 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 3.14 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.
SECTION 3.15. NO NOVATION. THE PARTIES DO NOT INTEND THIS SUPPLEMENTAL
INDENTURE, NOR THE TRANSACTIONS
14
CONTEMPLATED HEREBY, TO BE, AND THIS SUPPLEMENTAL INDENTURE AND THE TRANSACTIONS
CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE, A NOVATION OR WAIVER OF ANY OF
THE OBLIGATIONS OWING BY ANY GUARANTOR OF ANY OBLIGATIONS UNDER OR IN CONNECTION
WITH ANY GUARANTY IN EXISTENCE AS OF THE DATE OF THIS SUPPLEMENTAL INDENTURE.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
SECTION 4.1. Ratification of Indenture. Except as expressly modified or
amended hereby, the Indenture continues in full force and effect and is in all
respects confirmed and preserved.
SECTION 4.2. Governing Law. This Supplemental Indenture shall be governed
by and construed in accordance with the laws of the State of Georgia. This
Supplemental Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended and shall, to the extent applicable, be governed by such
provisions.
SECTION 4.3. Counterparts. This Supplemental Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 4.4. Notices. Any notice required or permitted hereunder or under
the Indenture to be given or made to the Company or a Guarantor shall be given
or made in writing and mailed, first class postage prepaid, (i) to the Company
or (ii) to such Guarantor care of the Company, at the address of the Company set
forth below its signature hereon, or at any other address previously furnished
in writing to the Trustee and the Company by such Guarantor, with a copy to the
Company given or made in accordance with Section 105 of the Indenture.
SECTION 4.5. Successors and Assigns. This Supplemental Indenture shall be
binding upon the Company and each Guarantor, and their respective successors and
assigns and inure to the benefit of the respective successors and assigns of the
Trustee and the Holders.
SECTION 4.6. Time of the Essence. Time is of the essence with regard to the
Company's and the Guarantors' performance of their respective obligations
hereunder.
SECTION 4.7. 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 4.8. 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
15
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.
SECTION 4.9. 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 4.10. 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]
16
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: Chief Executive Officer
Address:
1696 N.E. Miami Gardens Drive
Miami, Florida 33179
Attention: Chief Financial Officer
GUARANTORS
Bandera Festival GP, LLC
Beechnut Centre Corp.
Benbrook Centre Corp.
Bend Shopping Centre Corp.
Cashmere Developments, Inc.
Centerfund (US), LLC
Centrefund Acquisition (Texas) Corp.
Centrefund Acquisition Corp.
Centrefund Development (Gainesville), LLC
Centrefund Realty (U.S.) Corporation
Colony GP, LLC
Copperfield Crossing, Inc.
Eastbelt Centre Corp.
Equity (Landing) Inc.
Equity One (147) Inc.
Equity One (Alpha) Corp.
Equity One (Atlantic Village) Inc.
Equity One (Beauclerc) Inc.
Equity One (Beta) Inc.
Equity One (Commonwealth) Inc.
Equity One Construction Inc.
By: /s/ Chaim Katzman
--------------------------------
Chaim Katzman
President
17
Equity One (Coral Way) Inc.
Equity One (Delta) Inc.
Equity One (El Novillo) Inc.
Equity One (Eustis Square) Inc.
Equity One (Forest Edge) Inc.
Equity One (Forest Village Phase II) Inc.
Equity One (Gamma) Inc.
Equity One (Lantana) Inc.
Equity One (Losco) Inc.
Equity One (Mandarin) Inc.
Equity One (Monument) Inc.
Equity One (North Port) Inc.
Equity One (Oak Hill) Inc.
Equity One (Olive) Inc.
Equity One (Point Royale) Inc.
Equity One (Sky Lake) Inc.
Equity One (Summerlin) Inc.
Equity One (Walden Woods) Inc.
Equity One (West Lake) Inc.
Equity One Acquisition Corp.
Equity One (Clematis) LLC
Equity One Properties, Inc.
Equity One Realty & Management Texas, Inc.
Equity One Realty & Management FL, Inc.
Equity Texas Properties, LLC
FC Market GP, LLC
Florida Del Rey Holdings II, Inc.
Forrestwood Equity Partners GP, LLC
Garland & Barns, LLC
Garland & Jupiter, LLC
Gazit (Meridian) Inc.
Grogan Centre Corp.
Harbor Barker Cypress GP, LLC
Hedwig GP, LLC
Homestead Market Center, Inc.
IRT Alabama, Inc.
IRT Capital Corporation II
IRT Management Company
KirkBiss GP, LLC
By: /s/ Chaim Katzman
--------------------------------
Chaim Katzman
President
18
Leesburg DrugStore, LLC
Mariner Outparcel, Inc.
Mason Park GP, LLC
McMinn Holdings, Inc.
North Kingwood Centre Corp.
Oakbrook Square Shopping Center Corp.
Parcel F, LLC
Plymouth South Acquisition Corp.
Prosperity Shopping Center Corp.
PSL Developments, Inc.
Ryanwood Shopping Center, L.L.C.
SA Blanco Village Partners GP, LLC
Salerno Village Shopping Center, LLC
Shoppes at Jonathan's Landing, Inc.
Shoppes at Westbury Shopping Center, Inc.
South Kingwood Centre Corp.
Spring Shadows GP, LLC
St. Charles Outparcel, Inc.
Steeplechase Centre Corp.
Southwest 19 Northern, Inc.
Texas Equity Holdings, LLC
The Harbour Center, Inc.
The Meadows Shopping Center, LLC
The Shoppes of Eastwood, LLC
UIRT GP, L.L.C.
UIRT I - Centennial, Inc.
UIRT LP, L.L.C.
UIRT-Northwest Crossing, Inc.
Wickham DrugStore, LLC
Wimbledon Center Corp.
Wurzbach Centre, LLC
By: /s/ Chaim Katzman
--------------------------------
Chaim Katzman
President
Bandera Festival Partners, LP
By: Bandera Festival GP, LLC
By: /s/ Chaim Katzman
---------------------------
Chaim Katzman
President
19
BC Centre Partners, LP
By: Harbour Barker Cypress GP, LLC
By: /s/ Chaim Katzman
---------------------------
Chaim Katzman
President
Beechnut Centre I L.P.
By: Beechnut Centre Corp.
By: /s/ Chaim Katzman
---------------------------
Chaim Katzman
President
Bend Shopping Centre I L.P.
By: Bend Shopping Centre Corp.
By: /s/ Chaim Katzman
---------------------------
Chaim Katzman
President
Eastbelt Centre I L.P.
By: Eastbelt Centre Corp.
By: /s/ Chaim Katzman
---------------------------
Chaim Katzman
President
FC Market Partners, LP
By: FC Market GP, LLC
By: /s/ Chaim Katzman
---------------------------
Chaim Katzman
President
20
Grogan Centre I L.P.
By: Grogan Centre Corp.
By: /s/ Chaim Katzman
---------------------------
Chaim Katzman
President
Hedwig Partners, LP
By: Hedwig GP, LLC
By: /s/ Chaim Katzman
---------------------------
Chaim Katzman
President
IRT Partners LP
By: Equity One, Inc.
By: /s/ Chaim Katzman
---------------------------
Chaim Katzman
President
Kirkwood - Bissonnet Partners, LP
By: KirkBiss GP, LLC
By: /s/ Chaim Katzman
---------------------------
Chaim Katzman
President
Mason Park Partners, LP
By: Mason Park GP, LLC
By: /s/ Chaim Katzman
---------------------------
Chaim Katzman
President
21
Park Northern/Centennial Partners, L.P.
By: UIRT I - Centennial, Inc.
By: /s/ Chaim Katzman
---------------------------
Chaim Katzman
President
SA Blanco Village Partners, LP
By: SA Blanco Village Partners GP, LLC
By: /s/ Chaim Katzman
---------------------------
Chaim Katzman
President
Steeplechase Centre I L.P.
By: Steeplechase Centre Corp.
By: /s/ Chaim Katzman
---------------------------
Chaim Katzman
President
Texas CP Land, LP
By: Colony GP, LLC
By: /s/ Chaim Katzman
---------------------------
Chaim Katzman
President
Texas Spring Shadows Partners, LP
By: Spring Shadows GP, LLC
By: /s/ Chaim Katzman
---------------------------
Chaim Katzman
President
22
UIRT, Ltd.
By: UIRT GP, LLC
By: /s/ Chaim Katzman
---------------------------
Chaim Katzman
President
23
SUNTRUST BANK, as Trustee
By: /s/ George Hogan
--------------------------------
Name: George Hogan
Title: Vice President
24
A-6
A-1
EXHIBIT A TO SUPPLEMENTAL INDENTURE
Unless this Certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Company (as
defined below) or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
Registered No. Principal Amount CUSIP No.:
-------------------- --------------------- ------------------
-001- --$200,000,000-- 94752 AA 8
EQUITY ONE, INC.
3.875% SENIOR NOTE DUE 2009
Unconditionally Guaranteed By The Guarantors Described Below
EQUITY ONE, INC., a corporation duly organized and existing under the laws
of the State of Maryland (herein referred to as the "Company" which term shall
include any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to CEDE & CO., or registered assigns,
upon presentation, the principal sum of TWO HUNDRED MILLION AND NO/100 DOLLARS
on April 15, 2009, and to pay interest on the outstanding principal amount
thereon from March 26, 2004, or from the immediately preceding Interest Payment
Date to which interest has been paid or duly provided for, semi-annually in
arrears on April 15 and October 15 of each year, commencing October 15, 2004, at
the rate of 3.875% per annum, until the entire principal hereof is paid or made
available for payment. The interest so payable and punctually paid or duly
provided for on any Interest Payment Date will, as provided in the Indenture, be
paid to the Person in whose name this Security is registered at the close of
business on the Regular Record Date for such interest which shall be the April 1
or October 1 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date, and may either be paid to the Person in whose name this Security is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of the Notes not more than 15 days and not less than 10 days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. Payment of the
principal of and interest on this Security will be made at the office or agency
maintained for that purpose in the City of New York, New York, or elsewhere as
provided in the Indenture, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payments of
principal and interest on the Notes may be made (i) by check mailed to
A-1
the address of the Person entitled thereto as such address shall appear in the
Security Register or (ii) by wire transfer to an account of the Person entitled
thereto located inside the United States.
Securities of this series (herein called the "Notes") are one of a duly
authorized issue of securities of the Company, issued and to be issued in one or
more series under the Indenture, dated as of September 9, 1998, as supplemented
by Supplemental Indenture No. 1, dated as of September 9, 1998, Supplemental
Indenture No. 2, dated as of November 1, 1999, Supplemental Indenture No. 3,
dated as of February 12, 2003 and Supplemental Indenture No. 4 dated as of March
26, 2004 (as so supplemented, herein called the "Indenture"), among the Company,
as successor to IRT Property Company, the Guarantors listed in such Supplemental
Indenture No. 4, and SunTrust Bank (formerly SunTrust Bank Atlanta) (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Guarantors, the Trustee and
the Holders of the Notes and of the terms upon which the Notes are authenticated
and delivered. This Security is one of the series designated in the first page
hereof, limited in aggregate principal amount to $200,000,000, except as
otherwise permitted by the Indenture.
The Notes may be redeemed at any time at the option and in the sole
discretion of the Company, in whole or from time to time in part, at a
redemption price equal to the sum of (i) the principal amount of the Notes being
redeemed plus accrued interest thereon to the redemption date and (ii) the
Make-Whole Amount, if any, with respect to such Notes (the "Redemption Price").
If (i) notice has been given as provided in the next paragraph and (ii) funds
for the redemption of the Notes called for redemption shall have been made
available as provided in the Indenture on the redemption date referred to in
such notice, such Notes will cease to bear interest on the date fixed for such
redemption specified in such notice, and the only right of the Holders of such
Notes will be to receive payment of the Redemption Price upon surrender of such
Notes in accordance with such notice.
Notice of any optional redemption of any Notes will be given to Holders at
their addresses, as shown in the Security Register, not more than 60 nor less
than 30 days prior to the date fixed for redemption. The notice of redemption
will specify, among other items, the Redemption Price and the principal amount
of the Notes held by each Holder to be redeemed. If less than all the Notes are
to be redeemed at the option and in the sole discretion of the Company, the
Company will notify the Trustee in writing at least 45 days prior to giving
notice of redemption (or such shorter period as is satisfactory to the Trustee)
of the aggregate principal amount of the Notes to be redeemed and their
redemption date. The Trustee shall select not more than 60 days prior to the
redemption date, in such manner as it shall deem fair and appropriate, in its
sole discretion, the Notes to be redeemed in whole or in part.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Security and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Company, in each case, upon compliance by the Company with certain conditions
set forth in the Indenture, which provisions apply to this Security.
A-2
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given
written notice to the Trustee of a continuing Event of Default with respect to
the Notes, the Holders of not less than 25% in principal amount of the Notes at
the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee indemnity satisfactory to the Trustee and the Trustee shall not have
received from the Holders of a majority in principal amount of the Notes at the
time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any interest on or after the respective due dates
expressed herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series of Securities then Outstanding affected
thereby. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange therefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any Place of Payment where the principal of and
interest on this are payable duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
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The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture or in this Security, or because of any indebtedness evidenced
hereby or thereby, shall be had against any promoter, as such, or against any
past, present or future shareholder, officer or director, as such, of the
Company or of any successor, either directly or through the Company or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of this Security by the Holder thereof and as part of the
consideration for the issue of the Notes.
All capitalized terms used in this Security which are not defined herein
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE NOTES, INCLUDING THIS SECURITY, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to be
printed on the Notes as a convenience to the Holders of such Notes. No
representation is made as to the correctness or accuracy of such CUSIP numbers
as printed on the Notes, and reliance may be placed only on the other
identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this Security shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, EQUITY ONE, INC. has caused this instrument to be duly
executed under its corporate seal.
Dated: March 26, 2004
EQUITY ONE, INC.
By:
------------------------------------
Name:
Title:
[Corporate Seal]
Attest:
---------------------------------
Assistant Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Notes referred to in the within-mentioned Indenture.
SUNTRUST BANK, as Trustee
By:
------------------------------------
Authorized Signatory
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GUARANTY
Each guarantor listed in Supplemental Indenture No. 4 (the "Guarantors"),
dated as of March 26, 2004 to the Indenture among Equity One, Inc., as successor
to IRT Property Company (the "Company"), the Guarantors and SunTrust Bank
(formerly SunTrust Bank, Atlanta), as trustee (the "Trustee") as further
supplemented by Supplemental Indenture No. 1 dated as of September 9, 1998,
Supplemental Indenture No. 2, dated as of November 1, 1999, Supplemental
Indenture No. 3 dated as of February 12, 2003 and Supplemental Indenture No. 4
dated as of March 26, 2004 (as so supplemented, herein called the "Indenture"),
has unconditionally guaranteed to the Trustee and the Holder of the Guaranteed
Securities upon which this Guaranty is endorsed full and prompt payment and
performance, when due, whether at maturity, by acceleration or otherwise, of (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 part 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 (collectively, the "Obligations"). Each
Obligation shall rank pari passu with each other Obligation.
This Guaranty shall not be valid or obligatory for any purpose until the
certificate of authentication of the Note upon which this Guaranty is endorsed
shall have been manually executed by or on behalf of the Trustee under the
Indenture.
All capitalized terms used in this Guaranty which are not defined herein
shall have the meanings assigned to them in the Indenture.
This Guaranty shall be governed by and construed in accordance with the
laws of the State of Georgia, except to the extent that the Trust Indenture Act
shall be applicable.
IN WITNESS WHEREOF, the Guarantors have caused this Guaranty to be duly
executed
Dated: March 26, 2004
GUARANTORS
Bandera Festival GP, LLC
Beechnut Centre Corp.
Benbrook Centre Corp.
Bend Shopping Centre Corp.
By: ___________________________
Chaim Katzman
President
A-6
Cashmere Developments, Inc.
Centerfund (US), LLC
Centrefund Acquisition (Texas) Corp.
Centrefund Acquisition Corp.
Centrefund Development (Gainesville), LLC
Centrefund Realty (U.S.) Corporation
Colony GP, LLC
Copperfield Crossing, Inc.
Eastbelt Centre Corp.
Equity (Landing) Inc.
Equity One (147) Inc.
Equity One (Alpha) Corp.
Equity One (Atlantic Village) Inc.
Equity One (Beauclerc) Inc.
Equity One (Beta) Inc.
Equity One (Commonwealth) Inc.
Equity One Construction Inc.
Equity One (Coral Way) Inc.
Equity One (Delta) Inc.
Equity One (El Novillo) Inc.
Equity One (Eustis Square) Inc.
Equity One (Forest Edge) Inc.
Equity One (Forest Village Phase II) Inc.
Equity One (Gamma) Inc.
Equity One (Lantana) Inc.
Equity One (Losco) Inc.
Equity One (Mandarin) Inc.
Equity One (Monument) Inc.
Equity One (North Port) Inc.
Equity One (Oak Hill) Inc.
Equity One (Olive) Inc.
Equity One (Point Royale) Inc.
Equity One (Sky Lake) Inc.
Equity One (Summerlin) Inc.
Equity One (Walden Woods) Inc.
Equity One (West Lake) Inc.
Equity One Acquisition Corp.
By: ___________________________
Chaim Katzman
President
A-7
Equity One (Clematis) LLC
Equity One Properties, Inc.
Equity One Realty & Management Texas, Inc.
Equity One Realty & Management FL, Inc.
Equity Texas Properties, LLC
FC Market GP, LLC
Florida Del Rey Holdings II, Inc.
Forrestwood Equity Partners GP, LLC
Garland & Barns, LLC
Garland & Jupiter, LLC
Gazit (Meridian) Inc.
Grogan Centre Corp.
Harbor Barker Cypress GP, LLC
Hedwig GP, LLC
Homestead Market Center, Inc.
IRT Alabama, Inc.
IRT Capital Corporation II
IRT Management Company
KirkBiss GP, LLC
Leesburg DrugStore, LLC
Mariner Outparcel, Inc.
Mason Park GP, LLC
McMinn Holdings, Inc.
North Kingwood Centre Corp.
Oakbrook Square Shopping Center Corp.
Parcel F, LLC
Plymouth South Acquisition Corp.
Prosperity Shopping Center Corp.
PSL Developments, Inc.
Ryanwood Shopping Center, L.L.C.
SA Blanco Village Partners GP, LLC
Salerno Village Shopping Center, LLC
Shoppes at Jonathan's Landing, Inc.
Shoppes at Westbury Shopping Center, Inc.
South Kingwood Centre Corp.
Spring Shadows GP, LLC
St. Charles Outparcel, Inc.
Steeplechase Centre Corp.
Southwest 19 Northern, Inc.
Texas Equity Holdings, LLC
By: _____________________________
Chaim Katzman
President
A-8
The Harbour Center, Inc.
The Meadows Shopping Center, LLC
The Shoppes of Eastwood, LLC
UIRT GP, L.L.C.
UIRT I - Centennial, Inc.
UIRT LP, L.L.C.
UIRT-Northwest Crossing, Inc.
Wickham DrugStore, LLC
Wimbledon Center Corp.
Wurzbach Centre, LLC
By: _____________________________
Chaim Katzman
President
Bandera Festival Partners, LP
By: Bandera Festival GP, LLC
By: _____________________________
Chaim Katzman
President
BC Centre Partners, LP
By: Harbour Barker Cypress GP, LLC
By: _____________________________
Chaim Katzman
President
Beechnut Centre I L.P.
By: Beechnut Centre Corp.
By: _____________________________
Chaim Katzman
President
A-9
Bend Shopping Centre I L.P.
By: Bend Shopping Centre Corp.
By: _____________________________
Chaim Katzman
President
Eastbelt Centre I L.P.
By: Eastbelt Centre Corp.
By: _____________________________
Chaim Katzman
President
FC Market Partners, LP
By: FC Market GP, LLC
By: _____________________________
Chaim Katzman
President
A-10
Grogan Centre I L.P.
By: Grogan Centre Corp.
By: _____________________________
Chaim Katzman
President
Hedwig Partners, LP
By: Hedwig GP, LLC
By: _____________________________
Chaim Katzman
President
IRT Partners LP
By: Equity One, Inc.
By: ______________________
Chaim Katzman
Chief Executive Officer
Kirkwood - Bissonnet Partners, LP
By: KirkBiss GP, LLC
By: _____________________________
Chaim Katzman
President
Mason Park Partners, LP
By: Mason Park GP, LLC
By: _____________________________
Chaim Katzman
President
A-11
Park Northern/Centennial
Partners, L.P.
By: UIRT I - Centennial, Inc.
By: _____________________________
Chaim Katzman
President
SA Blanco Village Partners, LP
By: SA Blanco Village Partners GP, LLC
By: _____________________________
Chaim Katzman
President
Steeplechase Centre I L.P.
By: Steeplechase Centre Corp.
By: _____________________________
Chaim Katzman
President
Texas CP Land, LP
By: Colony GP, LLC
By: _____________________________
Chaim Katzman
President
Texas Spring Shadows Partners, LP
By: Spring Shadows GP, LLC
By: _____________________________
Chaim Katzman
President
A-12
UIRT, Ltd.
By: UIRT GP, LLC
By: _____________________________
Chaim Katzman
President
A-13
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _________________________________________________________________________
Please Insert Social Security Or Other Identifying Number Of Assignee
___________________________________________________________________________
(Please Print or Typewrite Name and Address including Zip Code of Assignee)
the within Security of Equity One, Inc. and hereby does irrevocably constitute
and appoints ______________________________________________ Attorney to transfer
said Security on the books of the within-named Company with full power of
substitution in the premises.
Dated: ______________
NOTICE: The signature to this assignment must correspond with the name
as it appears on the first page of the within Security in every particular,
without alteration or enlargement or any change whatever.
A-14