EXHIBIT 4.8
Equity One, Inc.
Issuer
the
Guarantors
SET FORTH ON THE SIGNATURE PAGES ATTACHED HERETO
and
SUNTRUST BANK
Trustee
------------------------------------
Supplemental Indenture No. 4
Dated as of _______, 2003
------------------------------------
assumption and
GUARANTEE OF SENIOR DEBT SECURITIES
SUPPLEMENTAL INDENTURE NO. 4, dated as of ______, 2003 (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 (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-______),
providing for the issuance from time to time of senior debt securities of the
Company (the "Securities");
WHEREAS, the Guarantors will provide the guaranty herein set forth (the
"Guaranty") of the Obligations (as defined herein);
WHEREAS, Sections 901(1) 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 addition of new Guarantors
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, "Obligations" means (x) all payment and
performance obligations of the Company (i) under the Indenture with respect to
the Securities, (ii) under the Securities and (iii) as a result of the issuance
of the Securities and (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
Securities or (ii) the Securities.
ARTICLE TWO
GUARANTY
SECTION 2.1. 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 2.2. 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 matured or unmatured, in accordance with the terms of the
Indenture, but subject to the provisions of Section 2.8 hereof.
SECTION 2.3. Guaranty Final. Upon the execution and delivery of this
Supplemental Indenture by the parties hereto and the occurrence of the Effective
Time, this Supplemental Indenture shall be deemed to be finally executed and
delivered by the parties hereto and shall not
2
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 2.4. 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 2.5. 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 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 2.6 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 2.6. Guaranty Unconditional. Each Guarantor acknowledges and
agrees that no change in the nature or terms of the Obligations, the Indenture
or the Securities, or other agreements, instruments or contracts evidencing,
related to or attendant with the Obligations (including any novation), nor any
determination of lack of enforceability thereof, shall discharge all or any part
of the liabilities and obligations of 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 2.6, 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
3
them, or their failure to proceed promptly or otherwise, or by reason of any
action taken or omitted by the Company, the Trustee and the Holders, or any of
them, whether or not such action or failure to act varies or increases the risk
of, or affects the rights or remedies of, 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 2.7. 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 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 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 Securities of that series. If at
any time any payment of the principal of or interest on any 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 2.8. Application of Payments. The Trustee hereby acknowledges and
agrees, and each Holder shall be deemed to hereby acknowledge and agree, that to
the extent any of the Existing Senior Obligations (as defined below) is then in
default, any funds, payments, claims or distributions (the "Guaranty Proceeds")
actually received hereunder shall be made available for distribution equally and
ratably (based on the principal amounts then outstanding) among (a) the holders
of the Obligations and (b) the holders of the Existing Senior Obligations. For
purposes hereof, "Existing Senior Obligations" shall mean Debt for borrowed
money owed or guaranteed in connection with any unsecured and non-subordinated
Debt for borrowed money of the Company or the Guarantor (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, ▇▇▇▇▇ 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
4
2.8 shall not apply to any payments, funds, claims or distributions received by
the Trustee or any Holder directly or indirectly from the Company or any other
Person other than from the 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
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 2.9. 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 2.9 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
5
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 2.10. Remedies Cumulative. No delay by the Trustee and the Holders,
or any of them, in the exercise of any right or remedy shall operate as a waiver
thereof, and no single or partial exercise by the Trustee and the Holders, or
any of them, of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy. No action by the Trustee
and the Holders, or any of them, permitted hereunder shall in any way impair or
affect the Guaranty. For the purpose of the Guaranty, the Obligations shall
include, without limitation, all Obligations of the Company to the Trustee and
the Holders, notwithstanding any right or power of any third party, individually
or in the name of the Company or any other Person, to assert any claim or
defense as to the invalidity or unenforceability of any such Obligation, and no
such claim or defense shall impair or affect the obligations of any Guarantor
hereunder.
SECTION 2.11. 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 2.12. Benefit to Guarantor. Each Guarantor expressly represents and
acknowledges that the issuance and sale of the Securities under the Indenture
has been, and will be, of direct interest, benefit and advantage to such
Guarantor.
SECTION 2.13. 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 2.13, "debt" means any liability on a claim, and
"claim" means (x) the right to payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
undisputed, legal, equitable, secured or unsecured, or (y) the right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, undisputed, secured or
unsecured.
SECTION 2.14. 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 a
6
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 consistent with the terms of the Indenture, a Guarantor may be
released by the Trustee as to any series of Securities (with the written consent
of the Holders of not less than 25% in principal amount of the outstanding
Securities of that series) 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 2.15. 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 2.15 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 2.15 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
Securities shall have been terminated.
7
SECTION 2.16. NO NOVATION. THE PARTIES DO NOT INTEND THIS SUPPLEMENTAL
INDENTURE, NOR THE TRANSACTIONS 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
EXISTING GUARANTOR OF THE OBLIGATIONS UNDER OR IN CONNECTION WITH ANY GUARANTY
IN EXISTENCE AT THE EFFECTIVE TIME.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. Ratification of Indenture. Except as expressly modified or
amended hereby, the Indenture continues in full force and effect and is in all
respects confirmed and preserved.
SECTION 3.2. Governing Law. This Supplemental Indenture shall be governed
by and construed in accordance with the laws of the State of Georgia. This
Supplemental Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended and shall, to the extent applicable, be governed by such
provisions.
SECTION 3.3. Counterparts. This Supplemental Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 3.4. Notices. Any notice required or permitted hereunder or under
the Indenture to be given or made to the 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 3.5. 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 3.6. 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 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.
[Signatures on Next Page]
8
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:
--------------------------------------
Name:
Title:
Address:
▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
GUARANTORS
By:
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, President
SUNTRUST BANK, as Trustee
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------