Equity One, Inc. Issuer, the Guarantors SET FORTH ON THE SIGNATURE PAGES ATTACHED HERETO and SUNTRUST BANK, as Trustee Supplemental Indenture No. 6 Dated as of May 20, 2005
Exhibit
4.2
Equity
One, Inc.
Issuer,
the
Guarantors
SET
FORTH ON THE SIGNATURE PAGES ATTACHED HERETO
and
SUNTRUST
BANK, as
Trustee
—————————————————--
Supplemental
Indenture No. 6
Dated
as of May 20, 2005
—————————————————--
GUARANTEE
OF SENIOR DEBT SECURITIES
SUPPLEMENTAL
INDENTURE NO. 6,
dated
as of May 20, 2005 (this “Supplemental
Indenture”),
among
Equity
One, Inc.,
a
corporation duly organized and existing under the laws of the State of Maryland
(the “Company”),
each
of the Guarantors
set
forth on the signature pages attached hereto (the “Guarantors”),
and
SunTrust
Bank (formerly
known as SunTrust Bank, Atlanta), a
Georgia
banking corporation duly organized and existing under the laws of the State
of
Georgia, as Trustee (the “Trustee”).
R
E C I T A L S
WHEREAS,
the
Company, as successor by merger to IRT Property Company, and the Trustee have
heretofore entered into an Indenture dated as of September 9, 1998 (the
“Original
Indenture”
and as
amended, supplemented or otherwise modified through the date hereof, the
“Indenture”),
which
has been filed with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, as an exhibit to the Company’s Registration Statement
on Form S-3 (Registration No. 333-106909), providing for the issuance from
time
to time of senior debt securities of the Company (“Securities”);
WHEREAS,
the
Guarantors will provide the guaranty herein set forth (the “Guaranty”)
of the
Obligations (as defined herein);
WHEREAS,
Sections 901(6) and 901(10) of the Indenture permit the Company and the Trustee
to enter into indentures supplemental thereto without the consent of any Holder
of Securities to evidence the Guaranty of each Guarantor and to make any change
to the Indenture, provided that such change does not adversely affect the
interests of the Holders of Securities of any series or any related coupons
in
any material respect;
WHEREAS,
each
Guarantor has determined that its execution, delivery and performance of this
Supplemental Indenture directly benefits, and are within the purposes and best
interests of, the Guarantor;
WHEREAS,
the
Board of Directors of the Company has duly adopted resolutions authorizing
the
Company to execute and deliver this Supplemental Indenture and the Board of
Directors (or equivalent governing body) of each Guarantor has duly adopted
resolutions authorizing such Guarantor to execute and deliver this Supplemental
Indenture; and
WHEREAS,
all
other conditions and requirements necessary to make this Supplemental Indenture,
when duly executed and delivered, a valid and binding agreement in accordance
with its terms and for the purposes herein expressed, have been performed and
fulfilled.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
For
and
in consideration of the premises and other good and valuable consideration,
the
receipt and sufficiency of which is hereby acknowledged, the Company and each
Guarantor agrees as follows:
ARTICLE
ONE
DEFINITIONS
(a) capitalized
terms used but not defined herein shall have the respective meanings assigned
to
them in the Indenture;
(b) all
references herein to Articles and Sections refer to the corresponding Articles
and Sections of this Supplemental Indenture; and
(c) as
used
herein the following terms have the following meanings:
“Guaranteed
Securities”
means
all Securities issued under the Indenture as of the date hereof.
“Obligations”
means
(x) all payment and performance obligations of the Company (i) under the
Indenture with respect to the Guaranteed Securities, (ii) under the Guaranteed
Securities and (iii) as a result of the issuance of the Guaranteed Securities
and (y) the obligation to pay an amount equal to the amount of any and all
damages which the Trustee and the Holders, or any of them, may suffer by reason
of a breach by either the Company or any other obligor of any obligation,
covenant or undertaking under (i) the Indenture with respect to the Guaranteed
Securities or (ii) the Guaranteed Securities.
ARTICLE
TWO
GUARANTY
SECTION
2.4. Dealings
With the Company.
The
Company, the Trustee and the Holders, or any of them, may, from time to time,
without exonerating or releasing any Guarantor in any way under the Guaranty,
(i) take such further or other security or securities for the Obligations or
any
part thereof as the Trustee and the Holders, or any of them, may deem proper,
consistent with the Indenture, or (ii) release, discharge, abandon or otherwise
deal with or fail to deal with any Guarantor of the Obligations or any security
or securities therefor or any part thereof now or hereafter held by the Trustee
and the Holders, or any of them, as the Trustee and the Holders, or any of
them,
may deem proper, consistent with the Indenture, or (iii) consistent with the
Indenture, amend, modify, extend, accelerate or waive in any manner any of
the
provisions, terms, or conditions of the Indenture and the Guaranteed Securities,
all as the Company, the Trustee and the Holders, or any of them, may consider
expedient or appropriate in their sole discretion. Without limiting the
generality of the foregoing, or of Section 2.5
hereof,
it is understood that the Company, the Trustee and the Holders, or any of them,
may, without exonerating or releasing any Guarantor, give up, or modify or
abstain from perfecting or taking advantage of any security for the Obligations
and accept or make any compositions or arrangements, and realize upon any
security for the Obligations when, and in such manner, as the Trustee and the
Holders, or any of them, may deem expedient, consistent with the Indenture,
all
without notice to any Guarantor.
(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.
As
of any
date of determination, the “Allocable
Amount”
of each
Contributing Party shall be equal to the maximum amount of liability which
could
be asserted against such Contributing Party hereunder with respect to the
applicable Guarantor Payment without (i) rendering such Contributing Party
“insolvent” within the meaning of Section 101(31) of the Federal Bankruptcy Code
(the “Bankruptcy
Code”)
or
Section 2 of either the Uniform Fraudulent Transfer Act (the “UFTA”)
or the
Uniform Fraudulent Conveyance Act (the “UFCA”),
(ii)
leaving such Contributing Party with unreasonably small capital, within the
meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA or
Section 5 of the UFCA, or (iii) leaving such Contributing Party unable to pay
its debts as they become due within the meaning of Section 548 of the Bankruptcy
Code or Section 4 of the UFTA or Section 6 of the UFCA or in any case, any
successor to the Bankruptcy Code or any such section thereof or any successor
to
the UFTA or the UFCA or any such sections thereof.
This
Section 2.14
is
intended only to define the relative rights of the Contributing Parties, and
nothing set forth in this Agreement is intended to or shall impair the
obligations of the Guarantors, jointly and severally, to pay any amounts, as
and
when the same shall become due and payable in accordance with the terms of
the
Guaranty.
The
parties hereto acknowledge that the rights of contribution and indemnification
hereunder shall constitute assets in favor of each Guarantor to which such
contribution and indemnification is owing.
This
Section 2.14
shall
continue in full force and effect and may not be terminated or otherwise revoked
by any Contributing Party until all of the Guaranteed Obligations shall have
been indefeasibly paid in full (in lawful money of the United States of America)
and discharged and the Indenture and Guaranteed Securities shall have been
terminated.
ARTICLE
THREE
MISCELLANEOUS
PROVISIONS
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
3.8. Rights
and Duties of Trustee.
The
rights and duties of the Trustee shall be determined by the express provisions
of the Original Indenture and, except as expressly set forth in this
Supplemental Indenture, nothing in this Supplemental Indenture shall in any
way
modify or otherwise affect the Trustee’s rights and duties thereunder. The
Trustee makes no representation or warranty as to the validity of this
Supplemental Indenture and, except insofar as relates to the validity hereof
with respect to the Trustee specifically, the Trustee shall not be liable in
connection therewith. The Trustee makes no representation or warranty, express
or implied, as to the accuracy or completeness of any information contained
in
any offering or disclosure document related to the sale of the Securities,
except for such information that specifically pertains to the Trustee itself,
or
any information incorporated therein by reference.
SECTION
3.9. Amendment
and Waiver.
This
Supplemental Indenture shall not be amended unless such amendment (i) complies
with the terms of the Indenture, (ii) is in writing and (iii) is executed by
each of the parties hereto. No alteration or waiver of this Supplemental
Indenture or of any of its terms, provisions or conditions shall be binding
upon
the parties against whom enforcement is sought unless made in writing and signed
by an authorized officer of such party or its general partner, as
applicable.
SECTION
3.10. Conflicts.
In the
event of any conflict between the terms of this Supplemental Indenture and
the
terms of the Indenture, the terms of this Supplemental Indenture shall
control.
[Signatures
on Next Page]
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/ Xxxxx Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
President
Address:
0000
X.X.
Xxxxx Xxxxxxx Xxxxx
Xxxxx,
Xxxxxxx 00000
Attention:
Chief Financial Officer
GUARANTORS
Equity
One (Cambridge Project) LLC
Equity
One (Quincy Project) LLC
Equity
One (West Roxbury) LLC
Equity
One (Homestead Land) Inc.
Equity
One (Middle Beach) Inc.
By:
/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
President
Equity
(Texas) One Westgate Phase III LP
By:
Equity (Texas Holdings) One GP LLC, its general partner
By:
/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
President
Equity
(Texas) One Desoto LP
By:
Equity (Texas Holdings) One GP LLC, its general partner
By:
/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
President
SUNTRUST
BANK, as Trustee
By:
Name:
Title:
