UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 2004
Commission File No. 001-13499
Maryland 52-1794271
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
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Check whether the registrant (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Securities Act of 1934 during the past 12 months (or
for such shorter period that the registrant was required to file such reports)
and (2) has been subject to such filing requirements for the past 90 days.
Yes [X] No [ ]
Indicate by check mark whether the registrant is an accelerated filer (as defined in Exchange Act Rule 12b-2 of the Exchange). Yes [X] No[ ]
Applicable only to Corporate Issuers:
As of the close of business on May 5, 2004, 70,312,238 shares of the Company's common stock, par value $0.01 per share, were issued and outstanding.
EQUITY ONE, INC.
FORM 10-Q
INDEX
PART I - FINANCIAL INFORMATION
------------------------------
Item 1. Condensed Consolidated Financial Statements and Notes Page
-------
Condensed Consolidated Balance Sheets
As of March 31, 2004 and December 31, 2003 (unaudited)....................................... 1
Condensed Consolidated Statements of Operations
For the three month periods ended March 31, 2004 and 2003 (unaudited)........................ 3
Condensed Consolidated Statements of Comprehensive Income
For the three month periods ended March 31, 2004 and 2003 (unaudited)........................ 5
Condensed Consolidated Statement of Stockholders' Equity
For the three month period ended March 31, 2004 (unaudited).................................. 6
Condensed Consolidated Statements of Cash Flows
For the three month periods ended March 31, 2004 and 2003 (unaudited)........................ 7
Notes to the Condensed Consolidated Financial Statements (unaudited)......................... 9
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations........ 21
Item 3. Quantitative and Qualitative Disclosures about Market Risk................................... 29
Item 4. Controls and Procedures...................................................................... 31
PART II - OTHER INFORMATION
---------------------------
Item 1. Legal Proceedings ........................................................................... 32
Item 2. Changes in Securities and Use of Proceeds ................................................... 32
Item 3. Defaults upon Senior Securities ............................................................. 32
Item 4. Submission of Matters to a Vote of Security Holders ......................................... 32
Item 5. Other Information ........................................................................... 32
Item 6. Exhibits and Reports on Form 8-K ............................................................ 33
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Item 1. Condensed Consolidated Financial Statements and Notes
March 31, December 31,
2004 2003
-------------- --------------
ASSETS
PROPERTIES:
Income producing............................................... $ 1,740,063 $ 1,594,579
Less: accumulated depreciation................................. (74,485) (66,406)
-------------- --------------
1,665,578 1,528,173
Construction in progress and land held for development......... 54,338 74,686
Properties held for sale....................................... 1,231 14,440
-------------- --------------
Properties, net............................................. 1,721,147 1,617,299
CASH AND CASH EQUIVALENTS......................................... 17 966
CASH HELD IN ESCROW............................................... 1,884 -
ACCOUNTS AND OTHER RECEIVABLES, NET............................... 8,919 13,492
INVESTMENTS IN AND ADVANCES TO JOINT VENTURES..................... 2,860 2,861
GOODWILL ......................................................... 14,578 14,014
OTHER ASSETS...................................................... 42,694 28,754
-------------- --------------
TOTAL............................................................. $ 1,792,099 $ 1,677,386
============== ==============
(continued)
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March 31, December 31,
2004 2003
----------- -----------
LIABILITIES AND STOCKHOLDERS' EQUITY
LIABILITIES:
NOTES PAYABLE
Mortgage notes payable.......................................................$ 470,263 $ 459,103
Unsecured revolving credit facilities........................................ 50,879 162,000
Unsecured senior notes payable............................................... 350,000 150,000
----------- -----------
871,142 771,103
Unamortized premium/discount on notes payable................................ 23,894 24,218
----------- -----------
Total notes payable....................................................... 895,036 795,321
OTHER LIABILITIES
Accounts payable and accrued expenses........................................ 23,996 25,211
Tenant security deposits..................................................... 8,171 7,706
Other liabilities............................................................ 4,472 5,924
----------- -----------
Total liabilities......................................................... 931,675 834,162
----------- -----------
MINORITY INTEREST............................................................... 12,444 12,672
----------- -----------
COMMITMENTS AND CONTINGENT LIABILITIES
STOCKHOLDERS' EQUITY:
Preferred stock, $0.01 par value - 10,000 shares authorized but unissued..... - -
Common stock, $0.01 par value - 100,000 shares authorized, 70,105 and
69,353 shares issued and outstanding for 2004 and 2003, respectively....... 701 694
Additional paid-in capital................................................... 856,720 843,678
Retained earnings............................................................ 609 -
Accumulated other comprehensive loss......................................... (1,007) (122)
Unamortized restricted stock compensation.................................... (8,455) (10,091)
Notes receivable from issuance of common stock............................... (588) (3,607)
----------- -----------
Total stockholders' equity................................................ 847,980 830,552
----------- -----------
TOTAL...........................................................................$ 1,792,099 $ 1,677,386
=========== ===========
See accompanying notes to the condensed consolidated financial statements. (Concluded)
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Three Months Ended
March 31,
----------------------------
2004 2003
------------ ------------
RENTAL REVENUE:
Minimum rents........................................................... $ 42,174 $ 28,586
Expense recoveries...................................................... 11,673 7,943
Termination fees........................................................ 69 59
Percentage rent payments................................................ 1,378 1,008
------------ ------------
Total rental revenue................................................. 55,294 37,596
------------ ------------
COSTS AND EXPENSES:
Property operating expenses............................................. 14,458 10,904
Interest expense........................................................ 10,575 7,650
Amortization of deferred financing fees................................. 266 284
Rental property depreciation and amortization........................... 8,432 4,946
General and administrative expenses..................................... 3,452 2,242
------------ ------------
Total costs and expenses............................................ 37,183 26,026
------------ ------------
INCOME BEFORE OTHER INCOME AND EXPENSES, DISCONTINUED
OPERATIONS AND MINORITY INTEREST........................................ 18,111 11,570
OTHER INCOME AND EXPENSES:
Investment income....................................................... 171 441
Other income............................................................ 64 63
Equity in loss of joint ventures........................................ (1) (34)
Loss on extinguishment of debt.......................................... - (623)
------------ ------------
INCOME BEFORE DISCONTINUED OPERATIONS AND MINORITY
INTEREST................................................................ 18,345 11,417
------------ ------------
DISCONTINUED OPERATIONS:
Income from operations of sold properties............................... 74 565
Gain on disposal of income producing properties......................... 2,035 503
------------ ------------
Income from discontinued operations................................... 2,109 1,068
------------ ------------
INCOME BEFORE MINORITY INTEREST............................................ 20,454 12,485
MINORITY INTEREST.......................................................... (215) (141)
------------ ------------
NET INCOME................................................................. $ 20,239 $ 12,344
============ ============
(continued)
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Three Months Ended
March 31,
-------------------------------
2004 2003
-------------- --------------
EARNINGS PER SHARE:
BASIC EARNINGS PER SHARE
Income before discontinued operations................................... $ 0.26 $ 0.24
Income from discontinued operations..................................... 0.03 0.02
-------------- -------------
Total basic earnings per share........................................ $ 0.29 $ 0.26
============== =============
NUMBER OF SHARES USED IN COMPUTING
BASIC EARNINGS PER SHARE................................................ 69,115 47,163
============== =============
DILUTED EARNINGS PER SHARE
Income before discontinued operations................................... $ 0.26 $ 0.24
Income from discontinued operations..................................... 0.03 0.02
-------------- -------------
Total diluted earnings per share...................................... $ 0.29 $ 0.26
============== =============
NUMBER OF SHARES USED IN COMPUTING
DILUTED EARNINGS PER SHARE.............................................. 71,021 48,475
============== =============
See accompanying notes to the condensed consolidated financial statements. (concluded)
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Three Months Ended
March 31,
-----------------------------
2004 2003
----------- ------------
NET INCOME................................................................. $ 20,239 $ 12,344
OTHER COMPREHENSIVE LOSS:
Net unrealized holding loss on securities available for sale........... - (1)
Change in fair value of cash flow hedges............................... (885) -
----------- ------------
COMPREHENSIVE INCOME....................................................... $ 19,354 $ 12,343
=========== ============
See accompanying notes to the condensed consolidated financial statements.
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Notes
Accumulated Unamortized Receivable
Additional Other Restricted from Total
Common Paid-In Retained Comprehensive Stock Issuance of Stockholders'
Stock Capital Earnings Loss Compensation Common Stock Equity
-------- --------- --------- ------------- ------------ ------------- ------------
BALANCE,
JANUARY 1, 2004............ $ 694 $843,678 $ - $ (122) $ (10,091) $ (3,607) $ 830,552
Issuance of common stock.. 7 13,113 - - 1,636 - 14,756
Stock issuance costs...... - (71) - - - - (71)
Repayment of notes
receivable from
issuance of common
stock.................... - - - - - 3,019 3,019
Net income................ - - 20,239 - - - 20,239
Dividends paid............ - - (19,630) - - - (19,630)
Change in fair value of
cash flow hedges......... - - - (885) - - (885)
------- --------- --------- ----------- ----------- ----------- -----------
BALANCE,
MARCH 31, 2004............. $ 701 $856,720 $ 609 $ (1,007) $ (8,455) $ (588) $ 847,980
======= ========= ========= =========== =========== =========== ===========
See accompanying notes to the condensed consolidated financial statements.
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Three Months Ended
March 31,
---------------------------------
2004 2003
-------------- ---------------
OPERATING ACTIVITIES:
Net income............................................................... $ 20,239 $ 12,344
Adjustments to reconcile net income to net cash provided by operating
activities:
Straight line rent adjustment........................................ (544) (333)
Provision for losses on accounts receivable.......................... 237 648
Amortization of premium/discount on notes payable.................... (1,215) (329)
Amortization of deferred financing fees.............................. 266 284
Rental property depreciation and amortization........................ 8,432 4,946
Depreciation and amortization included in discontinued operations.... - 100
Amortization of restricted stock..................................... 1,172 480
Equity in loss of joint ventures..................................... 1 34
Loss on extinguishment of debt....................................... - 623
Gain on disposal of real estate...................................... (2,035) (503)
Minority interest in earnings of consolidated subsidiaries........... 215 141
Changes in assets and liabilities:
Accounts and other receivables....................................... 4,336 908
Other assets......................................................... (3,495) (2,328)
Accounts payable and accrued expenses................................ (995) (5,154)
Tenant security deposits............................................. 465 255
Other liabilities.................................................... 98 (64)
-------------- -----------
Net cash provided by operating activities................................ 27,177 12,052
-------------- -----------
INVESTING ACTIVITIES:
Additions to and purchases of properties.............................. (94,816) (2,166)
Additions to construction in progress................................. (9,883) (6,572)
Proceeds from disposal of rental properties........................... 1,986 6,694
Increase in cash held in escrow....................................... (1,884) (13)
Distributions received from joint ventures............................ - 300
Proceeds from repayments of notes receivable.......................... 1,430 2,753
Increase in deferred leasing costs.................................... (2,472) (692)
Cash used in the purchase of IRT...................................... - (189,382)
Cash acquired in the IRT acquisition.................................. - 1,756
-------------- -----------
Net cash used in investing activities.................................... (105,639) (187,322)
-------------- -----------
FINANCING ACTIVITIES:
Repayments of mortgage notes payable.................................. (3,716) (46,009)
Net borrowings (repayments) under revolving credit facilities......... (111,121) 138,000
Proceeds from senior debt offering.................................... 199,750 -
Increase in deferred financing costs.................................. (2,724) (559)
Proceeds from stock subscription and issuance of common stock......... 12,238 100,276
Stock issuance costs.................................................. (71) (323)
Repayment of notes receivable from issuance of common stock........... 3,019 -
Cash dividends paid to stockholders................................... (19,630) (16,130)
Distributions to minority interest.................................... (232) (250)
-------------- -----------
Net cash provided by financing activities................................ 77,513 175,005
-------------- -----------
NET DECREASE IN CASH AND CASH EQUIVALENTS................................ (949) (265)
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD........................... 966 2,944
-------------- -----------
CASH AND CASH EQUIVALENTS, END OF PERIOD................................. $ 17 $ 2,679
============== ===========
(Continued)
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Three Months Ended
March 31,
----------------------------
2004 2003
------------ ------------
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid for interest, net of amount capitalized................... $ 10,575 $ 6,945
============ ============
SUPPLEMENTAL SCHEDULE OF NON-CASH INVESTING AND
FINANCING ACTIVITIES:
Change in unrealized holding gain on securities available for sale... $ (1)
===========
Change in fair value of cash flow hedges............................. $ 885
============
Issuance of restricted stock......................................... $ 882 $ 2,967
============ ============
Note receivable from sale of property................................ $ 4,655
============
The Company acquired and assumed two mortgage notes
in connection with the acquisition of a rental property:
Fair value of rental property and other assets.................... $ 46,592
Assumption of mortgage notes payable.............................. (14,875)
Fair value adjustment of mortgage notes payable................... (1,244)
------------
Cash paid for rental property..................................... $ 30,473
============
The Company acquired all of the outstanding common stock of IRT for
$763,047, including transaction costs:
Fair value of assets acquired, including goodwill................. $ 763,047
Assumption of liabilities, unsecured senior notes and mortgage
notes payable................................................... (319,598)
Fair value adjustment of unsecured senior notes and mortgage
notes payable................................................... (22,330)
Common stock issued............................................... (231,737)
---------
Cash paid for IRT acquisition, including transaction costs........ $ 189,382
=========
See accompanying notes to the condensed consolidated financial (Concluded)
statements.
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EQUITY ONE, INC. AND SUBSIDIARIES
NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
FOR THE THREE MONTH PERIODS ENDED MARCH 31, 2004 AND 2003
(UNAUDITED)
(In thousands, except per share and square feet amounts)
Equity One, Inc. operates as a self-managed real estate investment trust ("REIT") that principally acquires, renovates, develops and manages community and neighborhood shopping centers located predominantly in high growth markets in the southern United States. These shopping centers are primarily anchored by supermarkets or other necessity-oriented retailers such as drug stores or discount retail stores.
The condensed consolidated financial statements include the accounts of Equity One, Inc. and its wholly-owned subsidiaries, including those partnerships of which it has financial and operating control. Equity One, Inc. and subsidiaries are hereinafter referred to as "the consolidated companies" or "the Company." The Company has a 50% investment in two joint ventures of which the Company is not the primary beneficiary and, accordingly, uses the equity method of accounting for these joint ventures.
As of March 31, 2004, the Company's portfolio of neighborhood shopping centers anchored by national and regional supermarket chains and other necessity oriented retailers such as drug stores or discount stores is located in twelve states in the southern United States and consists of 189 properties, encompassing 127 supermarket-anchored shopping centers, 11 drug store-anchored shopping centers, 45 other retail-anchored shopping centers, one self-storage facility, one industrial property, and four retail developments, as well as non-controlling interests in two joint ventures which own and operate commercial real estate properties.
The accompanying unaudited condensed consolidated financial statements have been prepared by the Company's management in accordance with accounting principles generally accepted in the United States of America for interim financial information and with the instructions of Form 10-Q and Article 10 of Regulation S-X of the U.S. Securities and Exchange Commission (the "SEC"). Accordingly, these unaudited condensed consolidated financial statements do not include all of the information and footnotes required by accounting principles generally accepted in the United States of America for complete financial statements. In the opinion of management, all adjustments considered necessary for a fair presentation have been included. The results of operations for the three month period ended March 31, 2004 are not necessarily indicative of the results that may be expected for the full year. These unaudited condensed consolidated financial statements should be read in conjunction with Management's Discussion and Analysis of Financial Condition and Results of Operations contained elsewhere in this Form 10-Q and with Management's Discussion and Analysis of Financial Condition and Results of Operations and audited financial statements and related footnotes for the year ended December 31, 2003, included in the Company's Annual Report on Form 10-K, filed with the SEC on March 15, 2004.
The preparation of condensed consolidated financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes. Actual results could differ from those estimates.
All significant intercompany transactions and balances have been eliminated in consolidation.
Certain amounts as previously reported have been reclassified to conform to the current period's presentation.
On February 12, 2003, the Company completed a statutory with IRT Property Company ("IRT"). The Company acquired 93 properties that comprise an aggregate of approximately 10,041 square feet of gross leasable area. The acquisition created one of the largest shopping center REITs primarily focusing on the southeastern United States. The acquisition of IRT was accounted for using the purchase method and the results of IRT are included in the Company's financial statements since the date of its acquisition. The aggregate purchase price for the acquisition was $763,047 (including transaction costs and assumed debt), consisting of the payment of $189,382 in cash, the issuance of 17,490 shares of the Company's common stock valued at $231,737 and the assumption of $341,928 of outstanding debt, premium on notes payable, and other liabilities. The value of the Company's common stock was determined based on the average market price over the 3-day period before and after the terms of the acquisition were agreed to and announced. There were no contingent payments, options, or commitments specified in the agreement.
Income producing property is stated at cost and includes all costs related to acquisition, development and construction, including tenant improvements, interest incurred during development, costs of predevelopment and certain direct and indirect costs of development. Costs incurred during the predevelopment stage are capitalized once management has identified a site, determined that the project is feasible and it is probable that the Company is able to proceed with the project. Expenditures for ordinary maintenance and repairs are expensed to operations as they are incurred. Significant renovations and improvements, which improve or extend the useful life of assets, are capitalized.
Depreciation expense is computed using the straight-line method over the estimated useful lives of the assets, as follows:
Land improvements 40 years Buildings 30-40 years Building improvements 5-40 years Tenant improvements Over the terms of the related lease Equipment 5-7 years |
Total interest expense capitalized to land held for development and construction in progress was $812 and $684 for the three months ended March 31, 2004 and 2003, respectively.
The Company is actively pursuing acquisition opportunities and will not be successful in all cases; costs incurred related to these acquisition opportunities are expensed when it is probable that the Company will not be successful in the acquisition.
The Company allocates the purchase price of acquired companies and properties to the tangible and intangible assets acquired, and liabilities assumed based on their estimated fair values. Fair value is defined as the amount at which that asset could be bought or sold in a current transaction between willing parties (other than in a forced or liquidation sale). In order to allocate the purchase price of acquired companies and properties to the tangible and intangible assets acquired, the Company identifies and estimates the fair value of the land, buildings, and improvements, reviews the leases to determine the existence of, and estimates fair value of, any contractual or other legal rights and investigates the existence of, and estimates fair value of, any other identifiable intangible assets. Such valuations require management to make significant estimates and assumptions, especially with respect to intangible assets.
The cost approach is used as the primary method to estimate the fair value of the buildings, improvements and other assets. The market value approach is used as the primary method to estimate the fair value of the land. The determination of the fair value of contractual intangibles is based on the costs to originate a lease including commissions and legal costs to the extent that such costs are not already incurred with a new lease that has been negotiated in connection with the purchase of a property. In-place lease values are based on management's evaluation of the specific characteristics of each lease and the Company's overall relationship with each tenant. Among the factors considered in the allocation of these values include the nature of the existing relationship with the tenant, the tenant's credit quality, the expectation of lease renewals, the estimated carrying costs of the property during a hypothetical expected lease-up period, current market conditions and costs to execute similar leases. Estimated carrying costs include real estate taxes, insurance, other property operating costs and estimates of lost rentals at market rates during the hypothetical expected lease-up periods, given the specific market conditions. Above-market, below-market and in-place lease values are determined based on the present value (using a discount rate reflecting the risks associated with the leases acquired) of the difference between (i) the contractual amounts to be paid pursuant to the leases negotiated and in-place at the time of acquisition and (ii) management's estimate of fair market lease rates for the property or equivalent property, measured over a period equal to the remaining non-cancelable term of the lease. The value of contractual intangibles is amortized over the remaining term of each lease. Other than as discussed above, the Company has determined that its real estate properties do not have any other significant identifiable intangible assets.
Critical estimates in valuing certain of the intangible assets and the assumptions of what marketplace participants would use in making estimates of fair value include, but are not limited to: future expected cash flows, estimated carrying costs, estimated origination costs, lease up periods, and the tenant risk attributes, as well as assumptions about the period of time the acquired lease will continue to be used in the Company's portfolio and discount rates used in these calculations. Management's estimates of fair value are based upon assumptions believed to be reasonable, but which are inherently uncertain and unpredictable. Assumptions may not always reflect unanticipated events and changes in circumstances may occur. In making such estimates, management uses a number of sources, including appraisals that may be obtained in connection with the acquisition or financing of the respective property or other market data. Management also considers information obtained in its pre-acquisition due diligence and marketing and leasing activities in estimating the fair value of tangible and intangible assets acquired.
2004 Acquisition Activity
Square Purchase
Date Purchased Property Name City FL Feet/Acres Price
----------------- ------------------------- ------------ ------ ------------- ------------
Feb. 3, 2004 Bluebonnet Outparcel Baton Rouge LA 0.9 acres $ 500
Feb. 4, 2004 Pavilion Shopping Center Naples FL 161,245 24,200
March 24, 2004 Village Center Southland TX 118,092 17,475
March 24, 2004 Creekside Plaza Arlington TX 101,016 14,025
March 31, 2004 Sparkleberry Columbia SC 339,051 45,150
March 31, 2004 Venice Shopping Center Venice FL 111,934 6,447
-----------
Total....................................................................... $ 107,797
===========
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The Company's allocation of the purchase price for the acquisitions consummated during 2004 is preliminary and is subject to change. Management does not believe that any adjustment would have a material effect on the Company's financial position or results of operations.
As of March 31, 2004, one undeveloped piece of land was classified as property held for sale.
A summary of the Company's investments in unconsolidated joint ventures at March 31, 2004 and December 31, 2003 is as follows (all investments in unconsolidated entities are accounted for under the equity method):
March 31, December 31,
Entity Location Ownership 2004 2003
----------------- -------------------------- ----------- ------------- --------------
PG Partners Palm Beach Gardens, FL 50.0% $ 2,632 $ 2,633
Parcel F, LLC Palm Beach Gardens, FL 50.0% 228 228
------------- --------------
Total investments in and advances to joint ventures............ $ 2,860 $ 2,861
============= ==============
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A summary of unaudited financial information for all joint ventures being reported on the equity method of accounting is as follows:
As of As of
March 31, 2004 December 31, 2003
---------------- -----------------
Assets:
Rental properties, net.................... $ 16,558 $ 16,688
Other assets............................... 410 457
---------------- -----------------
Total assets............................... $ 16,968 $ 17,145
================ =================
Liabilities and Ventures' Equity:
Mortgage notes............................. $ 12,849 $ 12,878
Other liabilities.......................... 68 90
Ventures' equity........................... 4,051 4,177
---------------- -----------------
Total ..................................... $ 16,968 $ 17,145
================ =================
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The Company's investments in joint ventures, as reported on the condensed consolidated balance sheets, differ from its proportionate share of the joint ventures' underlying net assets due to basis differentials and advances. The basis differential of approximately $1,000 is being depreciated over the useful lives of the related assets.
Three Months Ended March 31,
-------------------------------------
2004 2003
--------------- -----------------
Revenues:
Rental revenues............................. $ 592 $ 583
--------------- -----------------
Total revenues............................ 592 583
--------------- -----------------
Expenses:
Operating expenses.......................... 174 216
Interest expense............................ 278 277
Depreciation................................ 131 151
Other expense............................... 11 15
--------------- -----------------
Total expenses............................ 594 659
--------------- -----------------
Net loss........................................ $ (2) $ (76)
=============== =================
The Company's equity in loss of joint
ventures...................................... $ (1) $ (34)
=============== =================
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Significant accounting policies used by the unconsolidated joint ventures are similar to those used by the Company.
Each of the existing mortgage loans is secured by a mortgage on one or more of the Company's properties. Certain of the mortgage loans involving an aggregate principal balance of approximately $182.5 million contain prohibitions on transfers of ownership which may have been violated by the Company's previous issuances of common stock or in connection with past acquisitions and may be violated by transactions involving the Company's capital stock in the future. If a violation were established, it could serve as a basis for a lender to accelerate amounts due under the affected mortgage. To date, no lender has notified the Company that it intends to accelerate its mortgage. Based on discussions with various lenders, current credit market conditions and other factors, the Company believes that the mortgages will not be accelerated. Accordingly, the Company believes that the violations of these prohibitions will not have a material adverse impact on the Company's results of operations or financial condition.
On March 26, 2004, the Company completed a $200,000 offering of its senior unsecured notes that mature on April 15, 2009 (the "2009 Notes"). The 2009 Notes bear an interest rate of 3.875%. Interest is due semi-annually on April 15 and October 15 of each year commencing on October 15, 2004. The 2009 Notes were issued at a discount of $250 that will be amortized against interest expense over the life of the 2009 Notes. The Company may redeem some or all of the 2009 Notes at any time for a price equal to the principal amount of the Notes being redeemed plus accrued interest. The 2009 Notes are guaranteed by most of the Company's wholly-owned subsidiaries and IRT Partners, LP ("LP"). The indenture under which the 2009 Notes were issued has several covenants which limit the Company's ability to incur debt; requires the Company to maintain unencumbered assets of not less than 150% of the aggregate principal amount of all the outstanding unsecured debt on a consolidated basis; and limits the Company's ability to consolidate, sell, lease, or convey substantially all of its assets to, or merge with any other entity.
In addition, the Company has obligations relating to $150,000 principal
amount of unsecured senior notes, bearing interest at fixed interest rates
ranging from 7.25% to 7.84% and maturing between 2006 and 2012. The interest
rate of one series of these senior notes is subject to a 50 basis point increase
if the Company does not maintain an investment grade debt rating. These notes
have also been guaranteed by most of the Company's wholly-owned subsidiaries and
LP.
On February 7, 2003, the Company entered into a $340,000 unsecured
revolving credit facility with a syndicate of banks for which Wells Fargo Bank,
National Association is the sole lead arranger and administrative agent. This
facility bears interest at the Company's option at (i) LIBOR plus 0.65% to
1.35%, depending on the credit ratings of the Company's senior unsecured long
term notes or (ii) at the greater of (x) Wells Fargo's prime rate and (y) the
Federal Funds Rate plus 0.5%. The facility is guaranteed by most of the
Company's wholly-owned subsidiaries as well as LP. Certain provisions of the
facility were amended on March 18, 2004. Based on the Company's current rating,
the LIBOR spread is 1.0%. The facility also includes a competitive bid option
which allows the Company to conduct auctions among the participating banks for
borrowings in an amount not to exceed $170,000 a $35,000 swing line facility for
short term borrowings, a $200,000 letter of credit commitment and may, at the
request of the Company, be increased up to a total commitment of $400,000. The
facility expires February 12, 2006 with a one year extension option. In
addition, the facility contains customary covenants, including financial
covenants regarding debt levels, total liabilities, interest coverage, EBITDA
levels, unencumbered properties, permitted investments and others. The facility
also prohibits stockholder distributions in excess of 95% of funds from
operations calculated at the end of each fiscal quarter for the four fiscal
quarters then ending. Notwithstanding this limitation, the Company can make
stockholder distributions to avoid income taxes on asset sales. If a default
under the facility exists, the Company`s
ability to pay dividends would be limited to the amount necessary to maintain the Company's status as a REIT unless the default is a payment default or bankruptcy event in which case the Company would be prohibited from paying any dividends. As of March 31, 2004, the Company had $48,000 outstanding on this credit facility. The weighted average interest rate as of March 31, 2004 was 2.08%, including the effect of interest rate swaps.
The Company has a $5,000 unsecured credit facility with City National Bank of Florida, of which $2,879 was outstanding as of March 31, 2004. This facility also provides collateral for $1,378 in outstanding letters of credit.
As of March 31, 2004, the availability under the various credit facilities was approximately $131,000 net of outstanding balances and letters of credit.
Most of the Company's subsidiaries, including LP, have guaranteed the Company's indebtedness under the unsecured senior notes and revolving credit facility. The guarantees are joint and several and full and unconditional.
Guarantors
--------------------------
IRT Non
Equity Combined Partners, Guaran Eliminating Consolidated
Condensed Balance Sheet One, Inc. Subsidiaries LP -tors Entries Equity One
------------ ------------ ---------- ----------- ----------- -------------
As of March 31, 2004
ASSETS
Properties, net.................. $ 520,241 $ 657,528 $ 185,533 $ 357,845 $ - $ 1,721,147
Investment in affiliates......... 435,752 - - - (435,752) -
Other assets..................... 32,598 23,688 2,927 11,739 - 70,952
----------- ------------ ---------- ----------- ----------- -------------
Total ......................... $ 988,591 $ 681,216 $ 188,460 $ 369,584 $ (435,752) $ 1,792,099
=========== ============ ========== =========== =========== =============
LIABILITIES
Mortgage notes payable........... $ 72,856 $ 171,630 $ 34,241 $ 191,536 $ - $ 470,263
Unsecured revolving credit
facilities..................... 50,879 - - - - 50,879
Unsecured senior notes payable,
net............................ 350,000 - - - - 350,000
Unamortized premium/discount on
notes payable.................. 12,258 5,876 4,516 1,244 - 23,894
Other liabilities................ 13,336 12,989 2,237 8,077 - 36,639
----------- ------------ ---------- ----------- ----------- -------------
Total liabilities.............. 499,329 190,495 40,994 200,857 - 931,675
MINORITY INTEREST................... - - - - 12,444 12,444
STOCKHOLDERS' EQUITY............... 489,262 490,721 147,466 168,727 (448,196) 847,980
----------- ------------ ---------- ----------- ----------- -------------
Total........................... . $ 988,591 $ 681,216 $ 188,460 $ 369,584 $ (435,752) $ 1,792,099
=========== ============ ========== =========== =========== =============
|
Guarantors
--------------------------
IRT Non
Equity Combined Partners, Guaran Eliminating Consolidated
Condensed Balance Sheet One, Inc. Subsidiaries LP -tors Entries Equity One
------------ ------------ ---------- ----------- ----------- -------------
As of December 31, 2003
ASSETS
Properties, net.................. $ 526,136 $ 561,455 $ 187,132 $ 342,576 $ - $1,617,299
Investment in affiliates......... 435,752 - - - (435,752) -
Other assets..................... 22,865 21,926 2,940 12,356 - 60,087
----------- ------------ ---------- ----------- ----------- -------------
Total ......................... $ 984,753 $ 583,381 $ 190,072 $ 354,932 $ (435,752) $1,677,386
=========== ============ ========== =========== =========== =============
LIABILITIES
Mortgage notes payable........... $ 74,726 $ 171,230 $ 34,400 $ 178,747 $ - $ 459,103
Unsecured revolving credit
facilities..................... 162,000 - - - - 162,000
Unsecured senior notes payable,
net............................ 150,000 - - - - 150,000
Unamortized premium on notes 8
payable........................ 13,505 5,950 4,661 102 - 24,218
Other liabilities................ 13,000 15,522 1,780 8,539 - 38,841
----------- ------------ ---------- ----------- ----------- -------------
Total liabilities.............. 413,231 192,702 40,841 187,388 - 834,162
MINORITY INTEREST................... - - - - 12,672 12,672
STOCKHOLDERS' EQUITY................ 571,522 390,679 149,231 167,544 (448,424) 830,552
----------- ------------ ---------- ----------- ----------- -------------
Total............................ $984,753 $ 583,381 $ 190,072 $ 354,932 $ (435,752) $1,677,386
=========== ============ ========== =========== =========== =============
|
Guarantors
-----------------------------
Condensed Statement of Operations Equity One, Combined IRT Non Consolidated
Inc. Subsidiaries Partners, LP Guarantors Equity One
------------ ------------ ------------ ------------ -------------
For the three months ended
March 31, 2004
RENTAL REVENUE:
Minimum rents.............................. $ 12,768 $ 15,361 $ 4,699 $ 9,346 $ 42,174
Expense recoveries......................... 3,188 4,269 1,230 2,986 11,673
Termination fees........................... 11 51 7 - 69
Percentage rent payments................... 233 346 152 647 1,378
------------ ------------ ------------ ------------ -------------
Total rental revenue..................... 16,200 20,027 6,088 12,979 55,294
------------ ------------ ------------ ------------ -------------
COSTS AND EXPENSES:
Property operating expenses................ 3,622 5,440 1,640 3,756 14,458
Interest expense........................... 4,059 2,459 580 3,477 10,575
Amortization of deferred financing fees.... 155 66 - 45 266
Rental property depreciation and
amortization............................. 2,465 3,397 852 1,718 8,432
General and administrative expenses........ 2,922 430 1 99 3,452
------------ ------------ ------------ ------------ -------------
Total costs and expenses................. 13,223 11,792 3,073 9,095 37,183
------------ ------------ ------------ ------------ -------------
INCOME BEFORE OTHER INCOME AND EXPENSES,
DISCONTINUED OPERATIONS AND MINORITY
INTEREST................................... 2,977 8,235 3,015 3,884 18,111
|
Guarantors
-----------------------------
Condensed Statement of Operations Equity One, Combined IRT Non Consolidated
Inc. Subsidiaries Partners, LP Guarantors Equity One
------------ ------------ ------------ ------------ -------------
For the three months ended
March 31, 2004 (continued)
OTHER INCOME AND EXPENSES:
Investment income.......................... 102 69 - - 171
Other income............................... 9 55 - - 64
Equity in loss of joint ventures........... - (1) - - (1)
------------ ------------ ------------ ------------ -------------
INCOME BEFORE DISCONTINUED OPERATIONS AND
MINORITY INTEREST............................ 3,088 8,358 3,015 3,884 18,345
------------ ------------ ------------ ------------ -------------
DISCONTINUED OPERATIONS
Income from operations of sold properties.. - - - 74 74
Gain on disposal of income producing
properties............................... (16) 18 - 2,033 2,035
------------ ------------ ------------ ------------ -------------
Total income from discontinued operations (16) 18 - 2,107 2,109
------------ ------------ ------------ ------------ -------------
INCOME BEFORE MINORITY INTERST................ 3,072 8,376 3,015 5,991 20,454
MINORITY INTEREST............................. (16) (11) (172) (16) (215)
------------ ------------ ------------ ------------ -------------
NET INCOME.................................... $ 3,056 $ 8,365 $ 2,843 $ 5,975 $ 20,239
============ ============ ============ ============ =============
|
Guarantors
------------------------------
Condensed Statement of Operations Equity One, Combined IRT Partners, Non Consolidated
Inc. Subsidiaries LP Guarantors Equity One
------------ ------------- ------------- ------------ -------------
For the three months ended
March 31, 2003
RENTAL REVENUE:
Minimum rents.............................. $ 7,318 $11,034 $ 2,460 $ 7,774 $28,586
Expense recoveries......................... 1,501 3,344 649 2,449 7,943
Termination fees........................... 52 4 1 2 59
Percentage rent payments................... 175 256 193 384 1,008
------------ ------------- ------------- ------------ ------------
Total rental revenue..................... 9,046 14,638 3,303 10,609 37,596
------------ ------------- ------------- ------------ ------------
COSTS AND EXPENSES:
Property operating expenses................ 2,484 4,007 939 3,474 10,904
Interest expense........................... 1,545 2,125 428 3,552 7,650
Amortization of deferred financing fees.... 114 110 2 58 284
Rental property depreciation and
amortization............................. 945 2,041 553 1,407 4,946
General and administrative expenses........ 2,242 - - - 2,242
------------ ------------- ------------- ------------ ------------
Total costs and expenses................. 7,330 8,283 1,922 8,491 26,026
------------ ------------- ------------- ------------ ------------
INCOME BEFORE OTHER INCOME AND EXPENSES,
DISCONTINUED OPERATIONS AND MINORITY
INTEREST................................... 1,716 6,355 1,381 2,118 11,570
OTHER INCOME AND EXPENSES:
Investment income.......................... 261 118 61 1 441
Other income (expense)..................... - 63 - - 63
|
Guarantors
------------------------------
Condensed Statement of Operations Equity One, Combined IRT Partners, Non Consolidated
Inc. Subsidiaries LP Guarantors Equity One
------------ ------------- ------------- ------------ -------------
For the three months ended
March 31, 2003 (continued)
Equity in loss of joint ventures............ - (34) - - (34)
Loss on extinguishment of debt.............. - (513) - (110) (623)
------------ ------------- ------------- ------------ -------------
INCOME BEFORE DISCONTINUED
OPERATIONS AND MINOR
INTEREST.................................... 1,977 5,989 1,442 2,009 11,417
------------ ------------- ------------- ------------ -------------
DISCONTINUED OPERATIONS
Income from operations of sold properties... - 565 - - 565
Gain on disposal of income producing
properties................................ - 503 - - 503
------------ ------------- ------------- ------------ -------------
Total income from discontinued
operations.............................. - 1,068 - - 1,068
------------ ------------- ------------- ------------ -------------
INCOME BEFORE MINORITY INTEREST................ 1,977 7,057 1,442 2,009 12,485
MINORITY INTEREST.............................. (55) 29 (69) (46) (141)
------------ ------------- ------------- ------------ -------------
NET INCOME..................................... $ 1,922 $ 7,086 $ 1,373 $ 1,963 $12,344
============ ============= ============= ============ =============
|
The following table reflects the change in number of shares of common stock outstanding for the three months ended March 31, 2004:
Common Options
Stock Exercised Total
------------- ------------- ------------
Board of Directors.......................... 14 - 14
Officers..................................... 17* 20 37
Employees and other......................... 16* 88 104
Dividend Reinvestment and Stock Purchase
Plan.................................... 597 - 597
------------- ------------- ------------
Total.................................. 644 108 752
============= ============= ============
|
* Reflects shares of "restricted stock" which are subject to forfeiture and vest over periods from two to five years.
The following table sets forth the computation of basic and diluted shares used in computing earnings per share for the three month periods ended March 31, 2004 and 2003:
Three Months Ended March 31,
-----------------------------
2004 2003
------------ ------------
Denominator for basic earnings per share -
weighted average shares ....................... 69,115 47,163
------------ ------------
Walden Woods Village, Ltd......................... 94 94
Unvested restricted stock ........................ 597 319
Convertible partnership units .................... 734 672
Stock options (using treasury method)............. 481 227
------------ ------------
Subtotal....................................... 1,906 1,312
------------ ------------
Denominator for diluted earnings per share -
weighted average shares........................ 71,021 48,475
============ ============
|
The Company applies the intrinsic value method as prescribed by Accounting Principles Board Opinion No. 25, Accounting for Stock Issued to Employees, and related interpretations in measuring stock-based compensation, including options. Accordingly, no compensation expense has been recognized for options granted under the Company's compensation plan as no grants were made at less than market value. Had compensation expense been determined based upon the fair value at the grant date for awards under the Plan consistent with SFAS No. 123, Accounting for Stock-Based Compensation, the Company's net income and earnings per share on a pro forma basis would have been:
Three Months Ended
March 31,
---------------------------
2004 2003
----------- -----------
Net Income As reported............................... $ 20,239 $ 12,344
Stock based employee compensation
expense included in reported net
income.................................. - -
Total stock based employee
compensation expense determined
under fair value based method for all
awards.................................. (194) (169)
----------- -----------
Pro forma................................. $ 20,045 $ 12,175
=========== ===========
Basic earnings per share As reported............................... $ 0.29 $ 0.26
=========== ===========
Pro forma................................. $ 0.29 $ 0.26
=========== ===========
Diluted earnings per share As reported............................... $ 0.29 $ 0.26
=========== ===========
Pro forma................................. $ 0.29 $ 0.25
=========== ===========
|
As a result of certain provisions of the Sarbanes-Oxley Act of 2002, the Company is generally prohibited from making loans to directors and executive officers. Prior to the adoption of the Sarbanes-Oxley Act of 2002, the Company had loaned $7,112 to various executives in connection with their exercise of options to purchase shares of the Company's common stock of which $6,524 has been repaid as of March 31, 2004. The notes bear interest at a rate of 5%. Interest only is payable quarterly and the principal is due between 2006 and 2007. In accordance with the provisions of the Sarbanes-Oxley Act of 2002, there have been no material modifications to any of the terms of the loans granted to our executives.
On December 30, 1998, a wholly owned subsidiary of the Company, Equity One (Walden Woods) Inc. (the "Walden Woods General Partner"), formed a limited partnership, in which a retail shopping center was contributed by its owners (the "Walden Woods Minority Partners"), and the Walden Woods General Partner contributed 93.656 shares of Company common stock at an agreed-upon price of $10.30 per share. Based on this per share price and the net asset value of the property contributed by the Walden Woods Minority Partners, each of the partners received 93.656 limited partnership units. The Company and the Walden Woods Minority Partners have entered into an agreement (the "Redemption Agreement") whereby the Walden Woods Minority Partners can request that the Company purchase either their limited partnership units or any shares of Company common stock which they have received in exchange for their limited partnership units at a price of $10.30 per unit or per share no earlier than two years, nor later than fifteen years, after the exchange date of January 1, 1999. As a result of the Redemption Agreement, the minority interest has been presented in the accompanying condensed
consolidated balance sheet. In addition, under the terms of the limited partnership agreement, the Walden Woods Minority Partners do not have an interest in the common stock of the Company except to the extent of dividends declared on such common stock. Accordingly, a preference in earnings has been allocated to the Walden Woods Minority Partners to the extent of the dividends declared. The 93.656 shares of common stock of the Company held by the consolidated limited partnership are not considered outstanding in the calculation of basic earnings per share.
On December 5, 2000, a wholly owned subsidiary of the Company, Equity One (North Port) Inc., entered into a limited partnership (the "Shoppes of North Port, Ltd.") as a general partner. The North Port Minority Partners had the right to redeem their OPUs for the Company's common stock on a one-for-one basis or for cash at an agreed upon price of $11.00 per share. During July 2003, North Port Minority Partners redeemed their OPUs in exchange for 261.850 shares of the Company's common stock.
The Company is the general partner of IRT Partners L.P. ("LP") and maintains an indirect partnership interest through its wholly-owned subsidiary, IRT Management Company. LP was formed in order to enhance the acquisition opportunities of the Company through a downREIT structure. This structure offers potential sellers of properties the ability to make a tax-deferred sale of their real estate properties in exchange for limited partnership units ("OP Units") of LP. As of March 31, 2004, there were 734.266 OP Units outstanding held by partners not affiliated with the Company. LP is obligated to redeem each OP Unit held by a person other than the Company, at the request of the holder, for cash equal to the fair market value of a share of the Company's common stock at the time of such redemption, provided that the Company may elect to acquire any such OP Unit presented for redemption for one share of common stock. Such limited partnership interests of 5.59% of LP are held by persons unaffiliated with the Company and are reflected as a minority interest in the consolidated subsidiaries in the accompanying condensed consolidated balance sheets.
The Company also records a minority interest for the limited partners' share of equity in Venice Plaza, a separate general partnership which it controls and of which it is the primary beneficiary (of a 75% interest). The minority interest has been presented in the accompanying condensed consolidated balance sheets.
The following table reflects the properties reported in discontinued
operations for the three month period ended March 31, 2004 as well as a listing
of 2003 dispositions:
Square Feet/ Gross Sales Gain On
Property Location Date Sold Acres Price Sale
------------------------ -------------------- ------------- -------------- ---------- ----------
2004 Dispositions
------------------------
Southwest Walgreens Phoenix, AZ February 93,402 $ 6,650 $ 2,035
========== ==========
Square Feet/ Gross Sales Gain On
Property Location Date Sold Acres Price Sale
----------------------- -------------------- ------------- -------------- ---------- ----------
2003 Dispositions
-----------------------
Eckerd.................... Leesburg, FL March 12,739 $ 4,050 $ 326
Eckerd.................... Melbourne, FL March 10,908 2,715 177
---------- ----------
First quarter 2003............................................................. 6,765 503
Pompano................ Pompano Beach, FL April 80,697 3,400 470
Huntcrest outparcels... Huntcrest, GA May 2.94 acres 1,686 -*
Oak Square Joint Venture.. Gainesville, FL June n/a 2,230 901
CDG (Park Place) LLC JV... Plano, TX September n/a 4,434 1,209
Heritage Walk............. Milledgeville, GA November 159,991 10,000 -*
Stadium Plaza............. Phenix City, AL December 70,475 4,800 -*
---------- -----------
Total for 2003 ................................................................ $ 33,315 $3,083
========== ===========
|
*Properties acquired as part of the IRT Property Company merger, for which no gain/(loss) has been recognized due to purchasing accounting.
The Company classified the results of operations from the properties sold during 2003 and 2004 as income from discontinued operations in the accompanying condensed consolidated statements of operations. The condensed consolidated statements of operations for these properties are shown below:
Three Months Ended
March 31,
-------------------------
2004 2003
---------- -----------
Rental revenue................................... $ 91 $ 654
---------- -----------
Property operating expenses...................... 54 154
Interest expense................................. - 69
Amortization of deferred financing fees.......... - 1
Rental property depreciation and amortization.... - 100
---------- -----------
Total expenses................................... 54 324
---------- -----------
Investment income................................ 37 90
---------- -----------
Equity in income of joint ventures............... - 145
---------- -----------
Income from discontinued operations.............. $ 74 $ 565
========== ===========
|
The Company has adopted SFAS No. 145, Rescission of FASB Statements No. 4, 44 and 64, Amendment of FASB Statement No. 13, and Technical Corrections, and is reporting the loss on extinguishment of debt as part of ordinary income as it no longer meets the criteria for extraordinary gain (loss) accounting treatment. During 2003, the Company prepaid four mortgages and incurred a loss of $623 on the early extinguishment of debt.
In January 2003, FASB issued FASB Interpretation No. 46, Consolidation of Variable Interest Entities ("FIN 46"), an interpretation of ARB 51. FIN 46 provides guidance on identifying entities for which control is achieved through means other than through voting rights, variable interest entities ("VIE"), and how to determine when and which business enterprises should consolidate the VIE. In addition, FIN 46 requires both the primary beneficiary and all other enterprises with a significant variable interest in a VIE to make additional disclosures. The consolidation provisions of FIN 46 are effective immediately for variable interests in VIEs created after January 31, 2003. For variable interests in VIEs created before February 1, 2003, the provisions of FIN 46 are effective for the first interim or annual period ending after December 15, 2003. The Company has evaluated the effect of FIN 46 and has determined where it is the primary beneficiary and has consolidated those VIE's. Where the Company has determined it is not the primary beneficiary of the VIE, it reports the VIE under the equity method. The adoption of FIN 46 did not require a change in the accounting treatment of any VIE's. The Company has not become a party to any VIE's during 2003.
In April 2003, FASB issued SFAS No. 149, Amendment of Statement 133 on Derivative Instruments and Hedging Activities, which clarifies the accounting and reporting for derivative instruments, including derivative instruments that are embedded in contracts. This statement is effective for contracts entered into or modified after June 30, 2003. The Company adopted this pronouncement beginning July 1, 2003. The adoption of SFAS No. 149 did not have a material impact on the Company's financial condition or results of operations.
In May 2003, the FASB issued SFAS No. 150, Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity. This statement establishes standards for the
classification and measurement of financial instruments that possess
characteristics similar to both liability and equity instruments. SFAS No. 150
also addresses the classification of certain financial instruments that include
an obligation to issue equity shares. On October 29, 2003, the FASB voted to
defer, for an indefinite period, the application of the guidance in SFAS No.
150. The FASB decided to defer the application of certain aspects of Statement
150 until it could consider some of the resulting implementation issues. The
Company has adopted certain provisions of SFAS No. 150 which did not have a
material impact on the Company's financial condition or results of operations.
The Company is still evaluating the potential effect of the provisions of SFAS
No. 150 that have been deferred to future periods.
In December 2003, the FASB issued Statement No. 132 (revised 2003), Employers' Disclosures about Pensions and Other Postretirement Benefits. This Statement revises employers' disclosures about pension plans and other postretirement benefit plans. It does not change the measurement or recognition provisions of FASB Statements No. 87, Employers' Accounting for Pensions, No. 88, Employers' Accounting for Settlements and Curtailments of Defined Benefit Pension Plans and for Termination Benefits, and No. 106, Employers' Accounting for Postretirement Benefits Other Than Pensions. This Statement retains the disclosure requirements contained in FASB Statement No. 132, Employers' Disclosures about Pensions and Other Postretirement Benefits, which it replaces. It requires additional disclosures about the assets, obligations, cash flows, and net periodic benefit cost of defined benefit pension plans and other postretirement benefit plans. The adoption of SFAS No. 132 (revised) did not have a material impact on the Company's financial statements.
As of March 31, 2004, the Company has pledged letters of credit totaling $1,433 as additional security for certain financings and other activities.
The Company is subject to litigation in the normal course of business, none of which in the opinion of management will have a material adverse effect on the financial condition or results of operations of the Company.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
The following discussion should be read in conjunction with the Company's unaudited Condensed Consolidated Financial Statements, including the notes thereto, which are included elsewhere herein and the Company's audited Consolidated Financial Statements and notes thereto for the year ended December 31, 2003 and Management's Discussion and Analysis of Financial Condition and Results of Operations appearing in the Company's Annual Report on Form 10-K for the year ended December 31, 2003 filed March 15, 2004. The results of operations for an interim period may not give a true indication of results for the year.
Unless the context otherwise requires, all references to "we," "our," "us," "Equity One," and the "Company" in this report refer collectively to Equity One Inc., and its subsidiaries, including joint ventures.
RESULTS OF OPERATIONS
On February 12, 2003, Equity One, Inc. and IRT Property Company ("IRT") completed a statutory merger. The transaction has been accounted for as a purchase and the results of Equity One include the activity of IRT since February 12, 2003.
Three Months Ended March 31, 2004 Compared to Three Months Ended March 31, 2003
Total rental revenue increased by $17.7 million, or 47.1%, to $55.3 million in 2004 from $37.6 million in 2003. The following factors accounted for this difference:
o The acquisition of IRT in 2003 increased revenue by approximately $10.8 million;
o Properties acquired during 2004 increased revenue by approximately $461,000.
o Properties acquired during 2003 increased revenue by approximately $5.7 million; and
o Other property rental revenue increased by $703,000 primarily related to the completion of a development property, lease-up of vacant space, and rental rate increases.
Property operating expenses increased by $3.6 million, or 32.6%, to $14.5 million for 2004 from $10.9 million in 2003. The following factors contributed to this difference:
o The acquisition of IRT increased operating expenses by approximately $1.9 million;
o Properties acquired during 2003 increased operating expenses by approximately $1.5 million;
o Properties acquired during 2004 increased operating expenses by $108,000; and
o Other property operating expenses increased by $219,000.
Rental property depreciation and amortization increased by $3.5 million, or 71.4%, to $8.4 million for 2004 from $4.9 million in 2003. The following factors primarily accounted for this difference:
o The acquisition of IRT increased depreciation and amortization by approximately $2.0 million;
o Properties acquired during 2003 increased depreciation and amortization by approximately $855,000; and
o Completed developments and properties purchased in 2004 increased depreciation and amortization by approximately $629,000.
Interest expense increased by $2.9 million, or 37.7%, to $10.6 million for 2004 from $7.7 million in 2003. This difference was primarily due to:
o An increase in interest expense of $2.3 million as a result of the assumption of mortgage loans and senior unsecured debt in the acquisition of IRT in 2003;
o Interest incurred on the debt related to the acquisition of properties during 2003 of $862,000;
o These increases to interest expense were partially offset by an increase in capitalized interest of $129,000 related to development activity.
General and administrative expenses increased by $1.2 million, or 54.5%, to $3.4 million for 2004 from $2.2 million in 2003. Compensation and employer related expenses increased by $1.1 million and other general office expenses increased by $100,000. These expense increases were due to the increase in staffing resulting from the IRT acquisition.
Investment income decreased by $270,000 due to the principal repayments received on notes receivable.
During 2003, we repaid various mortgage notes prior to their stated maturities and incurred a loss on the extinguishment of debt of $623,000.
We sold a property and have one property that is held for sale for the three month period ended March 31, 2004. The associated operating results of $74,000 of such properties are reflected as income from operations of sold properties. The 2003 discontinued operations reflect a reclassification of operations for properties sold during 2003 and 2004. We recognized a gain of $2.0 million in the first quarter of 2004 related to the disposal of a property and recognized a gain of $503,000 in the first quarter of 2003 related to disposal of several properties.
As a result of the foregoing, net income increased by $7.9 million, or 64.2%, to $20.2 million for 2004 from $12.3 million in 2003.
FUNDS FROM OPERATIONS
We believe Funds From Operations ("FFO") (combined with the primary GAAP presentations) is a useful supplemental measure of our operating performance that is a recognized metric used extensively by the real estate industry, in particular, REITs. Accounting for real estate assets using historical cost accounting under accounting principles generally accepted in the United States of America ("GAAP") assumes that the value of real estate diminishes predictably over time. The National Association of Real Estate Investment Trusts ("NAREIT") stated in its April 2002 White Paper on Funds from Operations "since real estate values...have historically risen or fallen with market conditions, many industry investors have considered presentations of operating results for real estate companies that use historical cost accounting to be insufficient by themselves."
FFO, as defined by NAREIT, is "net income (computed in accordance with GAAP), excluding (gains or losses) from sales of property, plus depreciation and amortization, and after adjustments for unconsolidated partnerships and joint ventures. Adjustments for unconsolidated partnerships and joint ventures will be calculated to reflect funds from operations on the same basis." We believe that financial analysts, investors and stockholders are better served by the clearer presentation of comparable period operating results generated from our FFO measure. Our method of calculating FFO may be different from methods used by other REITs and accordingly, may not be comparable to such other REITs.
FFO is presented to assist investors in analyzing our performance and to provide an indication of our ability to fund capital expenditures, distribution requirements and other cash needs. FFO (i) does not represent cash flow from operations as defined by GAAP, (ii) is not indicative of cash available to fund all cash flow needs and liquidity, including the ability to make distributions, and (iii) should not be considered as an alternative to net income (which is determined in accordance with GAAP) for purposes of evaluating our operating performance. We believe net income is the most directly comparable GAAP measure to FFO.
The following table illustrates the calculation of FFO for the three month periods ended March 31, 2004 and 2003:
Three Months Ended March 31,
-------------------------------
2004 2003
------------- -------------
Net income ...................................................... $ 20,239 $ 12,344
Adjustments:
Rental property depreciation and amortization, including
discontinued operations................................... 8,432 5,046
Gain on disposal of income producing properties.............. (2,035) (503)
Minority interest............................................ 199 131
Other Items:
Interest on convertible partnership units .................... - 65
Pro-rata share of real estate depreciation from joint
ventures............................................. .... 65 161
------------- -------------
Funds from operations ........................................... $ 26,900 $ 17,244
============= =============
|
FFO increased by $9.7 million, or 56.4%, to $26.9 million for the three months ended March 31, 2004, from $17.2 million for the comparable period of 2003.
The following table reflects the reconciliation of FFO per diluted share to earnings per diluted share, the most directly comparable GAAP measure, for the periods presented:
Three Months Ended March 31,
-------------------------------
2004 2003
----------- -----------
Earnings per diluted share*.................................. $ 0.29 $ 0.26
Adjustments:
Rental property depreciation and amortization, including
discontinued operations................................ 0.12 0.11
Gain on disposal of income producing properties.......... (0.03) (0.01)
----------- -----------
Funds from operations per diluted share...................... $ 0.38 $ 0.36
=========== ===========
|
* Earnings per diluted share reflect the add-back of interest on convertible partnership units and the minority interest(s) which are convertible to shares of our common stock.
CASH FLOWS
Net cash provided by operations of $27.2 million for the three months ended
March 31, 2004 included: (i) net income of $20.2 million, (ii) adjustments for
non-cash and gain on sale items which increased cash flow by $6.5 million, and
(iii) a net change in operating liabilities and operating assets that increased
cash flow by $409,000, compared to net cash provided by operations of $12.1
million for the three months ended March 31, 2003, which included (i) net income
of $12.3 million, (ii) adjustments for non-cash items which increased cash flow
by $6.1 million, and (iii) a net change in operating liabilities and operating
assets that reduced cash flow by $6.4 million.
Net cash used in investing activities of $105.6 million for the three
months ended March 31, 2004 included: (i) the acquisition of one parcel of land
held for future development and five shopping centers for $94.8 million, (ii)
construction, development and other capital improvements of $9.9 million (iii)
increased leasing costs of $2.5 million, and (iv) an increase in cash held in
escrow of $1.9 million, offset by (a) proceeds from the sale of one property of
$2.0 million, and (b) proceeds from payment of notes receivable of $1.4 million.
These amounts should be compared to net cash used in investing activities of
$187.3 million for the three months ended March 31, 2003 which included: (i) the
acquisition of one parcel of land held for future development for $2.2 million,
(ii) construction, development and other capital improvements of $6.6 million,
(iii) the acquisition of IRT for $187.6 million, net of cash received,
and (iv) increased leasing costs of $692,000, offset by (a) proceeds from the sale of two properties of $6.7 million, and (b) proceeds from payment of notes receivable of $2.8 million, and (c) distributions received from joint ventures of $300,000.
Net cash provided by financing activities of $77.5 million for the three months ended March 31, 2004 included: (i) net proceeds from the issuance of senior notes of $199.8 million, (ii) net proceeds from the issuance of common stock of $12.2 million, and (iii) proceeds from repayment of notes receivable of $3.0 million, offset by (a) the payoff of one mortgage note for $1.4 million and monthly principal payments on mortgage notes of $2.3 million, (b) cash dividends paid to common stockholders of $19.6 million, (c) repayments under revolving credit facilities of $111.1 million (d) an increase in deferred financing costs of $2.7 million related to the issuance of senior notes and (e) other miscellaneous uses of $303,000 compared to net cash used by financing activities of $175.0 million for the three months ended March 31, 2003 which included: (i) net proceeds from issuance of common stock of $100.0 million, and (ii) net borrowings on the revolving credit facilities of $138.0 million, offset by (a) the payoff of six mortgage notes for $43.5 million and monthly principal payments on mortgage notes of $2.5 million, (b) cash dividends paid to common stockholders of $16.1 million, (c) an increase in deferred financing costs of $559,000 and (d) other miscellaneous uses of $573,000.
LIQUIDITY AND CAPITAL RESOURCES
The Company's principal demands for liquidity are maintenance expenditures, repairs, property taxes and tenant improvements relating to rental properties, leasing costs, acquisition and development activities, debt service and repayment obligations and distributions to its stockholders. The principal sources of funding for the Company's operations are operating cash flows, the issuance of equity and debt securities, the placement of mortgage loans and periodic borrowings under the Company's revolving credit facilities.
On March 26, 2004, the Company completed a $200 million offering of its senior unsecured notes that mature on April 15, 2009 (the "2009 Notes"). The 2009 Notes bear an interest rate of 3.875%. Interest is due semi-annually on April 15 and October 15 of each year commencing on October 15, 2004. The 2009 Notes were issued at a discount of $250,000 that will be amortized against interest expense over the life of the 2009 Notes. The Company may redeem some or all of the 2009 Notes at any time for a price equal to the principal amount of the Notes being redeemed plus accrued interest. The 2009 Notes are guaranteed by most of the Company's wholly-owned subsidiaries and IRT Partners, LP ("LP"). The indenture under which the 2009 Notes were issued has several covenants which limit the Company's ability to incur debt; requires the Company to maintain unencumbered assets of not less than 150% of the aggregate principal amount of all the outstanding unsecured debt on a consolidated basis; and limit the Company's ability to consolidate, sell, lease, or convey substantially all of its assets to, or merge with any other entity.
In addition, the Company has obligations relating to $150 million principal amount of unsecured senior notes, bearing interest at fixed interest rates ranging from 7.25% to 7.84% and maturing between 2006 and 2012. The interest rate of one series of these senior notes is subject to a 50 basis point increase if the Company does not maintain an investment grade debt rating. These notes have also been guaranteed by most of the Company's wholly-owned subsidiaries and LP.
On February 7, 2003, the Company entered into a $340.0 million unsecured revolving credit facility with a syndicate of banks for which Wells Fargo Bank, National Association is the sole lead arranger and administrative agent. This facility bears interest at the Company's option at (i) LIBOR plus 0.65% to 1.35%, depending on the credit ratings of the Company's senior unsecured long term notes or (ii) at the greater of (x) Wells Fargo's prime rate and (y) the Federal Funds Rate plus 0.5%. The facility is
guaranteed by most of the Company's wholly-owned subsidiaries. Certain provisions of the facility were amended on March 18, 2004. Based on the Company's current rating, the LIBOR spread is 1.0%. The facility also includes a competitive bid option which allows the Company to conduct auctions among the participating banks for borrowings in an amount not to exceed $170.0 million, a $35.0 million swing line facility for short term borrowings, a $20.0 million letter of credit commitment and may, at the request of the Company, be increased up to a total commitment of $400.0 million. The facility expires February 12, 2006 with a one year extension option. In addition, the facility contains customary covenants, including financial covenants regarding debt levels, total liabilities, interest coverage, EBITDA levels, unencumbered properties, permitted investments and others. The facility also prohibits stockholder distributions in excess of 95% of funds from operations calculated at the end of each fiscal quarter for the four fiscal quarters then ending. Notwithstanding this limitation, the Company can make stockholder distributions to avoid income taxes on asset sales. If a default under the facility exists, the Company`s ability to pay dividends would be limited to the amount necessary to maintain the Company's status as a REIT unless the default is a payment default or bankruptcy event in which case the Company would be prohibited from paying any dividends. As of March 31, 2004, the Company had $48 million outstanding on this credit facility. The weighted average interest rate as of March 31, 2004 was 2.08%, including the effect of interest rate swaps.
The Company has a $5.0 million unsecured credit facility with City National Bank of Florida, of which $2.9 million was outstanding as of March 31, 2004. This facility also secures $1.4 million in outstanding letters of credit.
Our revolving credit facility balances as of March 31, 2004 and December 31, 2003 consisted of the following:
March 31, December 31,
2004 2003
------------- --------------
(in thousands)
Unsecured Revolving Credit Facilities
City National Bank of Florida..................... $ 2,879 $ -
Wells Fargo....................................... 48,000 162,000
------------- --------------
Total revolving credit facilities ............. $ 50,879 $ 162,000
============= ==============
|
As of March 31, 2004, the availability under the various credit facilities was approximately $131.0 million net of outstanding balances and letters of credit.
Our mortgage and unsecured senior notes payable balances as of March 31, 2004 and December 31, 2003 consisted of the following:
March 31, December 31,
2004 2003
-------------- -------------
(in thousands)
Mortgage and Unsecured Senior Notes Payable
Fixed rate mortgage loans............................. $ 470,263 $ 459,103
Unsecured senior notes payable........................ 350,000 150,000
Unamortized premium/discount on notes payable......... 23,894 24,218
-------------- -------------
Total mortgage and unsecured senior notes payable... $ 844,157 $ 633,321
============== =============
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The interest rate of the Company's 7.77% senior note is subject to a 50 basis point increase if the Company does not maintain an investment grade debt rating. The senior unsecured notes have also been guaranteed by most of the Company's wholly-owned subsidiaries and LP.
Each of the existing mortgage loans is secured by a mortgage on one or more of certain of the Company's properties. Certain of the mortgage loans involving an aggregate principal balance of
approximately $182.5 million contain prohibitions on transfers of ownership which may have been violated by the Company's previous issuances of common stock or in connection with past acquisitions and may be violated by transactions involving the Company's capital stock in the future. If a violation were established, it could serve as a basis for a lender to accelerate amounts due under the affected mortgage. To date, no lender has notified the Company that it intends to accelerate its mortgage. Based on discussions with various lenders, current credit market conditions and other factors, the Company believes that the mortgages will not be accelerated. Accordingly, the Company believes that the violations of these prohibitions will not have a material adverse impact on the Company's results of operations or financial condition.
As of March 31, 2004, our total debt of $871.1 million (less cash on hand) divided by our gross real estate assets of $1.8 billion equals 48.4%.
As of March 31, 2004, scheduled principal amortization and the balances due at the maturity of our various mortgage and unsecured senior notes payable and revolving credit facilities (excluding unamortized premium or discount on notes payable) are as follows (in thousands):
Secured Debt Unsecured Debt
------------------------------- --------------------------------
Revolving Total
Schedule Balloon Unsecured Credit Principal Balance
Year Amortization Payments Senior Notes Facilities Due at Maturity
-------------- --------------- -------------- -------------- -------------- ---------------------
2004.......... $ 7,248 $ 2,727 $ - $ 2,879 $ 12,854
2005.......... 9,954 30,093 - - 40,047
2006.......... 10,170 24,758 50,000 48,000 132,928
2007.......... 10,290 2,864 75,000 - 88,154
2008.......... 10,365 40,104 - - 50,469
2009.......... 10,024 24,332 200,000 - 234,356
2010.......... 9,049 80,848 - - 89,897
2011.......... 7,230 93,433 25,000 - 125,663
2012.......... 5,952 40,056 - - 46,008
2013.......... 5,525 - - - 5,525
Thereafter.... 36,447 8,794 - - 45,241
--------------- -------------- -------------- -------------- ---------------------
Total..... $122,254 $ 348,009 $ 350,000 $ 50,879 $ 871,142
=============== ============== ============== ============== =====================
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Our debt level could subject us to various risks, including the risk that our cash flow will be insufficient to meet required payments of principal and interest, and the risk that the resulting reduced financial flexibility could inhibit our ability to develop or improve our rental properties, withstand downturns in our rental income or take advantage of business opportunities. In addition, because we currently anticipate that only a small portion of the principal of our indebtedness will be repaid prior to maturity, it is expected that it will be necessary to refinance the majority of our debt. Accordingly, there is a risk that such indebtedness will not be able to be refinanced or that the terms of any refinancing will not be as favorable as the terms of our current indebtedness.
As of March 31, 2004, we had over 25 development and redevelopment projects underway or in the planning stage totaling approximately $80.5 million of asset value and, based on current plans and estimates, requiring approximately $26.2 million of additional investment to complete beyond the $54.3 million already expended. These include:
o CVS Plaza in Miami, Florida where we are completing the lease up of the local space at a new 31,804 square foot drug store-anchored shopping center we built across the street from our recently completed Publix supermarket anchored Plaza Alegre shopping center;
o Shops at Skylake in North Miami Beach, Florida, where we are in the process of adding 29,000 square feet of retail and office space;
o Bandera Festival in San Antonio, Texas; Centre Point in Smithfield, North Carolina; Copperfield in Houston, Texas; East Bay Plaza in Largo, Florida; Eustis Square in Eustis, Florida; Gulf Gate Plaza in Naples, Florida; Oakbrook Square in Palm Beach Gardens, Florida; and Walden Woods in Plant City, Florida, where we have reconfigured and redeveloped previously vacant anchor and other space and are completing the associated lease-up;
o Ambassador Row Courtyards in Lafayette, Louisiana where we are reconfiguring a portion of the center and adding an out parcel; and
o The development of two supermarket-anchored shopping centers, one in Homestead, Florida and the other in McDonough, Georgia, both on parcels we currently own and control.
These developments and redevelopments are scheduled for completion between the second quarter of 2004 and early 2006.
During the first quarter of 2004, we completed and leased $28.2 million of development product resulting in incremental net operating income in excess of $3.0 million on an annualized basis.
For the three months ended March 31, 2004, we issued 597,000 shares of our common stock at prices ranging from $18.18 to $18.99 per share pursuant to our Divided Reinvestment and Stock Purchase Plan. As of March 31, 2004, we have 1.6 million shares remaining for sale under that plan.
We believe, based on currently proposed plans and assumptions relating to our operations, that our existing financial arrangements, together with cash generated from our operations, will be sufficient to satisfy our cash requirements for a period of at least twelve months. In the event that our plans change, our assumptions change or prove to be inaccurate or cash flows from operations or amounts available under existing financing arrangements prove to be insufficient to fund our expansion and development efforts or to the extent we discover suitable acquisition targets the purchase price of which exceeds our existing liquidity, we would be required to seek additional sources of financing. There can be no assurance that any additional financing will be available on acceptable terms or at all, and any future equity financing could be dilutive to existing stockholders. If adequate funds are not available, our business operations could be materially adversely affected.
We believe that we qualify and intend to qualify as a REIT under the Internal Revenue Code. As a REIT, we are allowed to reduce taxable income by all or a portion of our distributions to stockholders. As distributions have exceeded taxable income, no provision for federal income taxes has been made. While we intend to continue to pay dividends to our stockholders, we also will reserve such amounts of cash flow as we consider necessary for the proper maintenance and improvement of our real estate and other corporate purposes, while still maintaining our qualification as a REIT.
Most of our leases contain provisions designed to partially mitigate the adverse impact of inflation. Such provisions include clauses enabling us to receive percentage rents based on tenant gross sales above predetermined levels, which rents generally increase as prices rise, or escalation clauses which are typically related to increases in the Consumer Price Index or similar inflation indices. Most of our leases require the tenant to pay its share of operating expenses, including common area maintenance,
real estate taxes and insurance, thereby reducing our exposure to increases in costs and operating expenses resulting from inflation.
Our financial results are affected by general economic conditions in the markets in which our properties are located. An economic recession, or other adverse changes in general or local economic conditions could result in the inability of some existing tenants to meet their lease obligations and could otherwise adversely affect our ability to attract or retain tenants. The properties are typically anchored by supermarkets, drug stores and other consumer necessity and service retailers which typically offer day-to-day necessities rather than luxury items. These types of tenants, in our experience, generally maintain more consistent sales performance during periods of adverse economic conditions.
CAUTIONARY STATEMENT RELATING TO FORWARD LOOKING STATEMENTS
Certain matters discussed in this Quarterly Report on Form 10-Q contain "forward-looking statements" for purposes of Section 27A of the Securities Act of 1933, as amended and Section 21E of the Securities Exchange Act of 1934, as amended. These forward-looking statements are based on current expectations and are not guarantees of future performance.
All statements other than statements of historical facts are forward-looking statements, and can be identified by the use of forward-looking terminology such as "may," "will," "might," "would," "expect," "anticipate," "estimate," "would," "could," "should," "believe," "intend," "project," "forecast," "target," "plan," or "continue" or the negative of these words or other variations or comparable terminology, are subject to certain risks, trends and uncertainties that could cause actual results to differ materially from those projected. Because these statements are subject to risks and uncertainties, actual results may differ materially from those expressed or implied by the forward-looking statements. We caution you not to place undue reliance on those statements, which speak only as of the date of this report.
Among the factors that could cause actual results to differ materially are:
o general economic conditions, competition and the supply of and demand for shopping center properties in our markets;
o management's ability to successfully combine and integrate the properties and operations of separate companies that we have acquired in the past or may acquire in the future;
o interest rate levels and the availability of financing;
o potential environmental liability and other risks associated with the ownership, development and acquisition of shopping center properties;
o risks that tenants will not take or remain in occupancy or pay rent;
o greater than anticipated construction or operating costs;
o inflationary and other general economic trends;
o the effects of hurricanes and other natural disasters; and
o other risks detailed from time to time in the reports filed by us with the Securities and Exchange Commission.
Except for ongoing obligations to disclose material information as required by the federal securities laws, we undertake no obligation to release publicly any revisions to any forward-looking statements to reflect events or circumstances after the date hereof or to reflect the occurrence of unanticipated events.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISKS
The primary market risk to which the Company has exposure is interest rate risk. Changes in interest rates can affect the Company's net income and cash flows. As changes in market conditions occur and, interest rates increase or decrease, interest expense on the variable component of the Company's debt will move in the same direction. With respect to our mortgage and senior unsecured notes payable, changes in interest rates generally do not affect the Company's interest expense as these notes payable are predominantly at fixed-rates for extended terms with a weighted average life of 6.35 years and 4.49 years, respectively. Because the Company has the intent to hold its existing fixed rate notes payable either to maturity or until the sale of the associated property, there is believed to be no interest rate market risk on the Company's results of operations or its working capital position. The Company's possible risk is from increases in long-term interest rates that may occur over a period of several years, as this may decrease the overall value of its real estate.
The Company estimates the fair market value of its long term, fixed rate mortgage loans using discounted cash flow analysis based on current borrowing rates for similar types of debt. At March 31, 2004, the fair value of the fixed rate mortgage loans was estimated to be $527.4 million compared to the carrying value amount of $470.3 million, excluding the unamortized premium on notes payable. If the weighted average interest rate on the Company's fixed rate debt were 100 basis points lower or higher than the current weighted average rate of 7.40%, the fair market value would be $494.4 million and $449.5 million, respectively.
The Company estimates the fair market value of its senior unsecured fixed rate debt using discounted cash flow analysis based on current borrowing rates for similar types of debt. At March 31, 2004, the fair value of its senior unsecured fixed rate debt was estimated to be $347.1 million compared to the carrying value amount of $350.0 million. If the weighted average interest rate on the Company's fixed rate debt were 100 basis points lower or higher than the current weighted average rate of 5.18%, the fair market value would be $364.3 million and $336.6 million, respectively.
At March 31, 2004, the Company's variable rate debt balance consisted of $50.9 million of revolving credit facilities, of which $20.0 million has been hedged under interest rate swaps pursuant to which the Company pays fixed interest rates and $30.9 million remains subject to changes in interest rates. In addition, $100 million of the $200 million senior unsecured notes due April 15, 2009 have been swapped to a floating rate equal to the six month LIBOR rate in arrears plus 0.4375%. If the weighted average interest rate on the unhedged portion of the Company's total variable rate debt of $130.9 million were 100 basis points higher or lower, annual interest expense would increase or decrease by approximately $1.3 million. At March 31, 2004, the fair value of the $20.0 million that is fixed under interest rate hedges was estimated to be a deficit to the Company of $188,000, while the fair value of the $100 million that is floating under interest rate hedges was estimated to be a deficit to the Company of $819,000.
In the normal course of business, we are exposed to the effects of interest rate changes that could affect our results of operations or cash flows. We limit these risks by following established risk management policies and procedures, including the use of a variety of derivative financial instruments to manage or hedge interest rate risk. We do not enter into derivative instruments for speculative purposes. We require that the hedging derivative instruments be effective in reducing interest rate risk exposure. This effectiveness is essential to qualify for hedge accounting. Changes in the hedging instrument's fair value related to the effective portion of the risk being hedged are included in accumulated other comprehensive income or loss. In those cases, hedge effectiveness criteria also require that it be probable that the underlying transaction occurs.
Hedges that meet these hedging criteria are formally designated as cash flow hedges at the inception of the derivative contract. When the terms of an underlying transaction are modified, or when the underlying hedged item ceases to exist, the change in the fair value of the derivative instrument is marked to market with the change included in net income in each period until the derivative instrument
matures. Additionally, any derivative instrument used for risk management that becomes ineffective is marked to market.
We do not anticipate non-performance by any of our counterparties. Net interest differentials to be paid or received under a swap contract and/or collar agreement are included in interest expense as incurred or earned.
Interest rate hedges that are designated as cash flow hedges hedge the future cash outflows on debt. Interest rate swaps that convert variable payments to fixed payments, interest rate caps, floors, collars and forwards are cash flow hedges. The unrealized gains or losses in the fair value of these hedges are reported on the balance sheet and included in accounts payable and accrued expenses with a corresponding adjustment to either accumulated other comprehensive income or loss or in earnings depending on the hedging relationship. If the hedging transaction is a cash flow hedge, then the offsetting gains or losses are reported in accumulated other comprehensive income or loss. Over time, the unrealized gains or losses held in accumulated other comprehensive income or loss will be recognized in earnings consistent with when the hedged items are recognized in earnings.
In conjunction with our policy to reduce interest rate risk, we have entered into interest rate swaps to hedge the variability of monthly cash outflows attributable to changes in LIBOR. Under certain of the swaps, we receive LIBOR based payments and pay a fixed rate. Under one of the swap agreements we have hedged $100 million of the $200 million unsecured senior notes due April 15, 2009 to a variable interest rate equal to the six month LIBOR rate in arrears plus 0.4375%. A summary of the terms of the derivative instruments, as of March 31, 2004, and a reconciliation of the fair value and adjustments to accumulated other comprehensive loss (in thousands) are as follows:
Hedge type............................................................... Cash Flow
Description.............................................................. Swap
Range of notional amounts................................................ $10,000 - $100,000
===================
Total................................................................. $ 120,000
===================
Range of interest rates................................................... 1.92% - 3.875%
Range of maturity dates................................................... 3/14/05 - 4/15/09
Total accumulated other comprehensive loss at December 31, 2003........... $ (122)
Change in fair value for the three months ended March 31, 2004.......... (885)
-------------------
Total accumulated other comprehensive loss at March 31, 2004............. $ (1,007)
===================
|
The estimated fair value of our financial instruments has been determined by us, using available market information and appropriate valuation methodologies. However, considerable judgment is necessarily required in interpreting market data to develop the estimates of fair value. Accordingly, the estimates presented herein are not necessarily indicative of the amounts that we could realize in a current market exchange. The use of different market assumptions or estimation methodologies may have a material effect on the estimated fair value amounts.
For purposes of the Securities and Exchange Commission's market risk disclosure requirements, we have estimated the fair value of our financial instruments at March 31, 2004. The fair value estimates presented herein are based on pertinent information available to management as of March 31, 2004. Although management is not aware of any factors that would significantly affect the estimated fair value amounts as of March 31, 2004, future estimates of fair value and the amounts which may be paid or realized in the future may differ significantly from amounts presented below. The Company's revolving credit facilities and the portion of the unsecured notes payable that were swapped to variable interest rates are sensitive to changes in interest rates.
ITEM 4. CONTROLS AND PROCEDURES
EVALUATION OF DISCLOSURE CONTROLS AND PROCEDURES
We maintain disclosure controls and procedures that are designed to provide reasonable assurance that information required to be disclosed in our Exchange Act reports is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission's rules and forms, and that such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure. In designing and evaluating the disclosure controls and procedures, management recognized that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and management necessarily was required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Also, we have investments in certain unconsolidated entities. As we do not control or manage these entities, our disclosure controls and procedures with respect to such entities are necessarily substantially more limited than those we maintain with respect to our consolidated subsidiaries.
As required by Rule 13a-15(b) under the Securities and Exchange Act of 1934, we carried out an evaluation, under the supervision and with the participation of management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures. Based on the foregoing, our Chief Executive Officer and Chief Financial Officer concluded that, as of the end of the period covered by this report, our disclosure controls and procedures were effective at the reasonable assurance level to ensure that information required to be disclosed by us in reports that we file under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms.
There have been no changes in our internal controls over financial reporting during the quarter ended March 31, 2004, that have materially affected, or are reasonably likely to materially affect, our internal controls over financial reporting.
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Neither the Company nor the Company's properties are subject to any material litigation. The Company and its properties may be subject to routine litigation and administrative proceedings arising in the ordinary course of business which collectively is not expected to have a material adverse affect on the business, financial condition, results of operations or cash flows of the Company.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
ITEM 5. OTHER INFORMATION
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
4.1 Supplemental Indenture No. 5 dated April 23, 2004 between the Company and Sun Trust Bank, as Trustee.
4.2 Supplemental Indenture No. 6 dated April , 2004 between the Company and Sun Trust Bank, as Trustee.
10.1 Third Amendment to Stockholders Agreement.
31.1 Certification of Chief Executive Officer pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934, as amended and Section 302 of the Sarbanes-Oxley Act of 2002.
31.2 Certification of Chief Financial Officer pursuant to Rule 13a-14(a) under the Securities Exchange Act of 1934, as amended and Section 302 of the Sarbanes-Oxley Act of 2002.
32 Certification of Chief Executive Officer and Chief Financial Officer pursuant to Rule 13a-14(b) under the Securities Exchange Act of 1934, as amended and 18 U.S.C. 1350, as created by Section 906 of the Sarbanes-Oxley Act of 2002.
(b) Reports on Form 8-K:
During the quarterly period ended March 31, 2004, the Company filed the following reports on Form 8-K:
(i) Report on Form 8-K dated January 6, 2004 under Item 5.
(ii) Report on Form 8-K dated March 22, 2004 under Item 5.
(iii) Report on Form 8-K dated March 25, 2004 under Item 5 and 7.
(iv) Report on Form 8-K dated March 31, 2004 under Item 5 and 7
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
Date: May 10, 2004 EQUITY ONE, INC.
/s/ HOWARD M. SIPZNER
----------------------------
Howard M. Sipzner
Executive Vice President and
Chief Financial Officer
(Principal Accounting
and Financial Officer)
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INDEX TO EXHIBITS
Exhibits Description
------- -----------
4.1 Supplemental Indenture No. 5 dated April 23, 2004 between
the Company and Sun Trust Bank, as Trustee.
4.2 Supplemental Indenture No. 6 dated April 23, 2004 between
the Company and Sun Trust Bank, as Trustee.
10.1 Third Amendment to Stockholders Agreement.
31.1 Certification of Chief Executive Officer pursuant to Rule
13a-14(a) under the Securities Exchange Act of 1934, as amended
and Section 302 of the Sarbanes-Oxley Act of 2002.
31.2 Certification of Chief Financial Officer pursuant to Rule
13a-14(a) under the Securities Exchange Act of 1934, as amended
and Section 302 of the Sarbanes-Oxley Act of 2002.
32 Certification of Chief Executive Officer and Chief Financial
Officer pursuant to Rule 13a-14(b) under the Securities Exchange
Act of 1934, as amended and 18 U.S.C. 1350, as created by Section
906 of the Sarbanes-Oxley Act of 2002.
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EXECUTION COPY
Equity One, Inc.
Issuer,
the
Guarantors
SET FORTH ON THE SIGNATURE PAGES ATTACHED HERETO
and
SUNTRUST BANK, as
Trustee
Supplemental Indenture No. 5
Dated as of April 23, 2004
GUARANTEE OF SENIOR DEBT SECURITIES
SUPPLEMENTAL INDENTURE NO. 5, dated as of April 23, 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").
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
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 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 2.7. 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
2.7 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 2.8. 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 2.8 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
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 2.9. 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 2.10. 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 2.11. 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 2.12. 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 2.12, "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 2.13. 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 a
Supplemental Indenture providing for a guaranty of the Obligations under the terms of this Article Two, 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 2.14. 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 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.
SECTION 2.15. 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 GUARANTOR OF ANY OBLIGATIONS UNDER OR IN CONNECTION WITH ANY GUARANTY IN EXISTENCE AS OF THE DATE OF THIS SUPPLEMENTAL INDENTURE.
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.
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/ Howard M. Sipzner
-------------------------------------
Name: Howard M. Sipzner
Title: Chief Financial Officer
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Address:
1696 N.E. Miami Gardens Drive
Miami, Florida 33179
Attention: Chief Financial Officer
GUARANTORS
Equity One Butler Creek LLC
Equity One Realty & Management SE, Inc.
Equity One (Beachway) Inc.
Equity One (Belfair II) Inc.
Equity One (First Merritt) Inc.
Equity One (Hamilton Ridge) Inc.
Equity One (Holly Hill) Inc.
Equity One (Hunter's Creek) Inc.
Equity One (Jonesboro) Inc.
Equity One (Louisiana Holding) LLC
Equity One (Louisiana Portfolio) LLC
Equity One (North Village) LLC
Equity One (North Village II) Inc.
Equity One (Pavilion) Inc.
Equity One (Presidential Movies) Inc.
Equity One (Sheridan Plaza) LLC
Equity One (Sparkleberry Phase II) Inc.
Equity (Texas Holdings) One GP LLC
Equity One (Venice) Inc.
Louisiana Holding Corp.
VW Mall, Inc.
By: /s/ Howard M. Sipzner
-----------------------------------
Howard M. Sipzner
Vice President
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Equity (Texas) One Creekside LP
By: Equity (Texas Holdings) One GP LLC, its
general partner
By: /s/ Howard M. Sipzner
-----------------------------------
Howard M. Sipzner
Vice President
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Equity (Texas) One Creekside Phase II LP
By: Equity (Texas Holdings) One GP LLC, its
general partner
By: /s/ Howard M. Sipzner
-----------------------------------
Howard M. Sipzner
Vice President
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Equity (Texas) One Village Center LP
By: Equity (Texas Holdings) One GP LLC, its
general partner
By: /s/ Howard M. Sipzner
-----------------------------------
Howard M. Sipzner
Vice President
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North Kingwood Centre I L.P.
By: North Kingwood Centre Corp., its
general partner
By: /s/ Howard M. Sipzner
-----------------------------------
Howard M. Sipzner
Vice President
|
South Kingwood Centre I L.P.
By: South Kingwood Centre Corp., its
general partner
By: /s/ Howard M. Sipzner
-----------------------------------
Howard M. Sipzner
Vice President
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SUNTRUST BANK, as Trustee
By: /s/ George Hogan
---------------------------------------
Name: George Hogan
Title: Vice President
Corporate Trust Administration
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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 April 23, 2004
GUARANTEE OF SENIOR DEBT SECURITIES
SUPPLEMENTAL INDENTURE NO. 6, dated as of April 23, 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").
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 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 2.7. 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 2.7 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 2.8. 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 2.8 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 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 2.9. 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 2.10. 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 2.11. 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 2.12. 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 2.12, "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 2.13. 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 a Supplemental Indenture providing for a guaranty of the Obligations under the terms of this Article Two, 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 2.14. 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 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.
SECTION 2.15. 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 GUARANTOR OF ANY OBLIGATIONS UNDER OR IN CONNECTION WITH ANY GUARANTY IN EXISTENCE AS OF THE DATE OF THIS SUPPLEMENTAL INDENTURE.
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.
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/ Howard M. Sipzner ------------------------------------- Name: Howard M. Sipzner Title: Chief Financial Officer |
Address:
1696 N.E. Miami Gardens Drive
Miami, Florida 33179
Attention: Chief Financial Officer
GUARANTORS
Equity One Butler Creek LLC
Equity One Realty & Management SE, Inc.
Equity One (Beachway) Inc.
Equity One (Belfair II) Inc.
Equity One (First Merritt) Inc.
Equity One (Hamilton Ridge) Inc.
Equity One (Holly Hill) Inc.
Equity One (Hunter's Creek) Inc.
Equity One (Jonesboro) Inc.
Equity One (Louisiana Holding) LLC
Equity One (Louisiana Portfolio) LLC
Equity One (North Village) LLC
Equity One (North Village II) Inc.
Equity One (Pavilion) Inc.
Equity One (Presidential Movies) Inc.
Equity One (Sheridan Plaza) LLC
Equity One (Sparkleberry Phase II) Inc.
Equity (Texas Holdings) One GP LLC
Equity One (Venice) Inc.
Louisiana Holding Corp.
VW Mall, Inc.
By: /s/ Howard M. Sipzner
-----------------------------------
Howard M. Sipzner
Vice President
|
Equity (Texas) One Creekside LP
By: Equity (Texas Holdings) One GP LLC,
its general partner
By: /s/ Howard M. Sipzner
-----------------------------------
Howard M. Sipzner
Vice President
|
Equity (Texas) One Creekside Phase II LP
By: Equity (Texas Holdings) One GP LLC,
its general partner
By: /s/ Howard M. Sipzner
-----------------------------------
Howard M. Sipzner
Vice President
|
Equity (Texas) One Village Center LP
By: Equity (Texas Holdings) One GP LLC,
its general partner
By: /s/ Howard M. Sipzner
-----------------------------------
Howard M. Sipzner
Vice President
|
North Kingwood Centre I L.P.
By: North Kingwood Centre Corp., its
general partner
By: /s/ Howard M. Sipzner
-----------------------------------
Howard M. Sipzner
Vice President
|
South Kingwood Centre I L.P.
By: South Kingwood Centre Corp., its
general partner
By: /s/ Howard M. Sipzner
-----------------------------------
Howard M. Sipzner
Vice President
|
SUNTRUST BANK, as Trustee
By: /s/ George Hogan
---------------------------------------
Name: George Hogan
Title: Vice President
Corporate Trust Administration
|
EQUITY ONE, INC.
THIRD AMENDMENT TO
STOCKHOLDERS AGREEMENT
This Third Amendment to Stockholders Agreement (the "Third Amendment") is
entered into on May 23, 2003, by and among Equity One, Inc., a Maryland
corporation (the "Corporation"), Alony Hetz Properties & Investments Ltd., an
Israeli corporation or a wholly owned entity (the "Investor"), Gazit-Globe
(1982) Ltd., an Israeli corporation ("Globe"), MGN (USA), Inc., a Nevada
corporation ("MGN"), and GAZIT (1995), Inc., a Nevada corporation ("Gazit").
WHEREAS, the parties hereto have entered into a Stockholders Agreement dated October 4, 2000 (the "Original Agreement"), a First Amendment to the Stockholder Agreement dated December 19, 2001 (the "First Amendment") and a Second Amendment to the Stockholder Agreement dated October 28, 2002 (the "Second Amendment") (the Original Agreement as amended by the First Amendment and by the Second Amendment will be referred to herein as the "Stockholders Agreement") (all terms not otherwise defined herein shall have the meanings ascribed thereto in the Stockholders Agreement);
WHEREAS, pursuant to the terms of the Stockholders Agreement, the Investor and Gazit-Globe Group agreed to certain rights relating to the Common Stock purchased by the Investor; and
WHEREAS, the Investor and Gazit-Globe Group desire to amend a certain provision of the Stockholders Agreement as more fully set forth herein;
NOW THEREFORE, in consideration of the mutual covenants and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledge, the parties hereto agree as follows:
1. Amendment to the Stockholders Agreement. The Stockholders Agreement is hereby amended as follows:
Section 4 to the Stockholders Agreement is hereby amended by deleting sub-paragraph (ii) in the first (preamble) paragraph of the Section in its entirety and inserting in lieu thereof the following:
"(ii)Gazit-Globe owns and/or controls, directly and/or indirectly through any of its members' subsidiaries and/or through any agreements or undertakings made on its (or their) behalf by other stockholders of the Corporation (including the Investor), the majority of the Corporation's common stock entitled to vote at the Corporation's stockholders meetings with respect to the election of the Corporation's directors."
2. References. All references in the Stockholders Agreement to "this Agreement" shall hereafter refer to the Stockholders Agreement as amended hereby.
3. Counterparts. This Third Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
4. Full Force and Effect. The stockholders Agreement, as amended by this Third Amendment, shall continue in full force and effect, and nothing herein contained shall be construed as a waiver or modification of existing rights and obligations under the Stockholders Agreement, except as such rights or obligations are expressly modified hereby.
5. Governing Law. This Third Amendment will be governed by and construed in accordance with the laws of the State of Florida.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be executed on their behalf, by their respective officers, thereunto duly authorized, on the date first written above.
EQUITY ONE, INC.
By: /s/ Chaim Katzman
---------------------------
Chaim Katzman
Chief Executive Officer
|
ALONY HETZ PROPERTIES &
INVESTMENTS LTD.
By: /s/ Alony Hetz
---------------------------
Alony Hetz
Chief Financial Officer and
Chief Executive Officer
|
M.G.N. (USA), INC.
By: /s/ Chaim Katzman
---------------------------
Chaim Katzman
Chief Executive Officer
|
GAZIT (1995) INC.
By: /s/ Chaim Katzman
---------------------------
Chaim Katzman
Chief Executive Officer
|
May 23, 2003
To: Gazit-Globe (1982) Ltd. ("Globe")
Re: Appointment of Directors in Equity One, Inc. (the "Corporation")
The undersigned hereby takes the following irrevocable undertaking (this "Undertaking") towards Globe and all of its subsidiaries (Globe and all of its subsidiaries shall collectively be referred to herein as "Gazit-Globe Group"):
1. During the Period, as defined herein, the undersigned will vote all of its Shares, as defined herein, of the Corporation, for nominees to the Board of Directors of the Corporation as directed in writing by a representative of Globe.
2. This Undertaking is irrevocable, and cannot be terminated or modified unless by a written document signed and dully approved by Globe.
3. For the purpose of this Undertaking, the term "Period" shall have the following meaning: a period during which -
(i) the undersigned and/or his immediate family members own beneficially and/or of record, directly and/or indirectly through any entity controlled by him and/or by such family member, 50% or more of Globe's total outstanding voting capital stock; and
(ii) Gazit-Globe Group owns, directly and/or indirectly through any of its members' subsidiaries, not less than 20% of the Corporation's total outstanding voting capital stock.
but in any event the Period shall end no later than at the tenth anniversary of the date of this Undertaking.
4. For the purpose of this Undertaking, the term "Shares" shall have the following meaning: shares of the Corporation owned beneficially and/or of record by the undersigned or controlled by him, including shares of the Corporation held by the undersigned's immediate family members and/or by any entity controlled by the undersigned and/or by such family member; but excluding shares of the Corporation owned by any members of Gazit-Globe Group.
5. For the purpose of avoiding any doubt, it is hereby clarified that the undersigned may sell, transfer pledge or make any other disposition with respect to his Shares, and the provisions of this Undertaking shall be in effect only with respect to such number of Shares (if at all) that will remain at the ownership of the undersigned (as described in Section 4 above) after such sale, transfer, pledge or other disposition. It is also clarified that any person who receives any of the shares (either by way of purchase, transfer, pledge or in any other disposition) shall not be subject to the terms of this Undertaking, as this Undertaking is personal (in personam) and shall only to Shares held (as described in Section 4 above) by the undersigned.
Sincerely,
/s/ Chaim Katzman |
CERTIFICATE OF CHIEF EXECUTIVE OFFICER
I, Chaim Katzman, Chief Executive Officer of Equity One, Inc., certify that:
1. I have reviewed this quarterly report on Form 10-Q of Equity One, Inc.;
2. Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this quarterly report;
3. Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report;
4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15e and 15d-15e) for the registrant and we have:
a. designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared;
b. evaluated the effectiveness of the registrant's disclosures controls and procedures and presented in this quarterly report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this quarterly report based on such evaluation; and
c. disclosed in this quarterly report any change in the registrant's internal controls over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to affect, the registrant's internal controls over financial reporting; and
5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal controls over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function):
a. all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b. any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal controls.
Date: May 10, 2004 /s/ CHAIM KATZMAN
-------------------------
Chaim Katzman
Chief Executive Officer
|
CERTIFICATE OF CHIEF FINANCIAL OFFICER
I, Howard M. Sipzner, Chief Financial Officer of Equity One, Inc., certify that:
1. I have reviewed this quarterly report on Form 10-Q of Equity One, Inc.;
2. Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this quarterly report;
3. Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report;
4. The registrant's other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15e and 15d-15e) for the registrant and we have:
a. designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared;
b. evaluated the effectiveness of the registrant's disclosures controls and procedures and presented in this quarterly report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this quarterly report based on such evaluation; and
c. disclosed in this quarterly report any change in the registrant's internal controls over financial reporting that occurred during the registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to affect, the registrant's internal controls over financial reporting; and
5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal controls over financial reporting, to the registrant's auditors and the audit committee of registrant's board of directors (or persons performing the equivalent function):
a. all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b. any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal controls.
Date: May 10, 2004 /s/ HOWARD M. SIPZNER
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Howard M. Sipzner
Executive Vice President and
Chief Financial Officer
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CERTIFICATE PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED
PURSUANT TO SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002
Pursuant to 18 U.S.C. ss. 1350, as created by Section ss. 906 of the Sarbanes-Oxley Act of 2002, the undersigned officers of Equity One, Inc. (the "Company") hereby certify, to such officers' knowledge, that:
(i) The accompanying Quarterly Report on Form 10-Q for the period ended
March 31, 2004 (the "Report") fully complies with the requirements of
Section 13(a) or 15(d), as applicable, of the Securities Exchange Act
of 1934, as amended; and
(ii) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
May 10, 2004 /s/ CHAIM KATZMAN
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Chaim Katzman
Chief Executive Officer
May 10, 2004 /s/ HOWARD M. SIPZNER
---------------------------------
Howard Sipzner
Executive Vice President and
Chief Financial Officer
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A signed original of this written statement required by Section 906 has been provided to the Company and will be retained by the Company and furnished to the Securities and Exchange Commission or its staff upon request.
The foregoing certification is being furnished as an exhibit to the Report pursuant to Item 601(b)(32) of Regulation S-K and Section 906 of the Sarbanes-Oxley Act of 2002 and, accordingly, is not being filed with the Securities and Exchange Commission as part of the Report and is not to be incorporated by reference into any filing of the Company under the Securities Act of 1933 or the Securities Exchange Act of 1934 (whether made before or after the date of the Report, irrespective of any general incorporation language contained in such filing).