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SUPPLEMENTAL INDENTURE NO. 7

Indenture Agreement

SUPPLEMENTAL INDENTURE NO. 7 | Document Parties: EQUITY ONE INC | SunTrust Bank You are currently viewing:
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EQUITY ONE INC | SunTrust Bank

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Title: SUPPLEMENTAL INDENTURE NO. 7
Governing Law: Georgia     Date: 8/8/2005
Industry: Real Estate Operations     Sector: Services

SUPPLEMENTAL INDENTURE NO. 7, Parties: equity one inc , suntrust bank
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Exhibit 4.1


 

EQUITY ONE, INC.

 

 

 

ISSUER,

 

THE

 

GUARANTORS

 

SET FORTH ON THE SIGNATURE PAGES ATTACHED HERETO

 

AND

 

SUNTRUST BANK, AS

 

TRUSTEE

 

—————————————————--

 

SUPPLEMENTAL INDENTURE NO. 7

 

DATED AS OF May 20, 2005

 

—————————————————--

 

GUARANTEE OF SENIOR DEBT SECURITIES

 

 

 

 

 


 

 

SUPPLEMENTAL INDENTURE NO. 7 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 November 9, 1995 (the “ Original Indenture ” and as amended, supplemented or otherwise modified through the date hereof, the “ Indenture ”), 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(9) 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

 

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;

 

(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 2.1.   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 2.7 hereof.

 

SECTION 2.3.   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 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.

 

SECTION 2.5.   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 2.5, 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 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 2.6.   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 forth


 
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