================================================================================
SECURITIES AND EXCHANGE COMMISSION
UNITED STATES
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) June 18, 2003
REGENCY CENTERS CORPORATION
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Florida 001-12298 59-3191743
- ---------------------------- ------------ -------------------
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
121 West Forsyth Street, Suite 200
Jacksonville, Florida 32202
- ---------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: (904)-598-7000
Not Applicable
-------------------------------------------------------------
(Former name or former address, if changed since last report)
================================================================================
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
C. Exhibits:
The exhibits listed below relate to the Registration Statement
No. 333-105408 on Form S-3 of Regency Centers Corporation and are
filed herewith for incorporation by reference in such Registration
Statement.
1.1 Underwriting Agreement dated as of June 18, 2003 among
Regency Centers Corporation, Security Capital Group
Incorporated, Citigroup Global Markets Inc. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated
1.2 Underwriting Agreement dated as of June 18, 2003, among
Citigroup Global Markets Holdings Inc, Regency Centers
Corporation, Security Capital Group Incorporated, Citigroup
Global Markets Inc and Merrill Lynch, Pierce, Fenner & Smith
Incorporated
2
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 hereunto duly authorized.
REGENCY CENTERS CORPORATION
(registrant)
June 23, 2003 By: /s/ J. Christian Leavitt
-----------------------------------------
J. Christian Leavitt, Senior Vice
President, Finance and Principal
Accounting Officer
3
EXECUTION COPY
Regency Centers Corporation
18,596,832 Shares*
Common Stock
($0.01 par value)
Underwriting Agreement
New York, New York
June 18, 2003
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013, and
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
New York, New York 10080,
As Representatives of the several Underwriters,
Ladies and Gentlemen:
Security Capital Group Incorporated, a corporation organized under the laws
of the State of Maryland (the "Selling Stockholder") and, through its
subsidiary, Security Capital Shopping Mall Business Trust (the "Trust"), a
shareholder of Regency Centers Corporation, a Florida corporation (the
"Company"), which is the general partner of Regency Centers, L.P., a Delaware
limited partnership (the "Partnership"), proposes to sell through the Trust to
the several underwriters named in Schedule I hereto (the "Underwriters"), for
whom you (the "Representatives") are acting as representatives, 6,876,832 shares
of Common Stock, $0.01 par value ("Common Stock") of the Company (said shares to
be sold by the Selling Stockholder being hereinafter called the "Underwritten
Securities"). The Trust has entered into a separate forward stock purchase
agreement individually with each of Merrill Lynch International ("MLI"), with
Merrill Lynch, Pierce, Fenner & Smith Incorporated acting as agent, JPMorgan
Chase Bank ("JPMorgan"), with J.P. Morgan Securities Inc. acting as agent, and
Wachovia Bank, National Association ("Wachovia", and together with MLI and
JPMorgan, the "Forward Counterparties"), with Wachovia Securities, LLC acting as
agent, dated the date hereof
- -------------------
* Plus an option to purchase from Security Capital Group Incorporated up to
2,789,524 additional shares to cover over-allotments.
(each, a "Forward Purchase Contract"). In connection therewith, the Forward
Counterparties propose to effect sales of a number of shares of Common Stock
equal to the initial Base Amount (as defined in the Confirmation) (the "Hedge
Securities"). The Trust also has entered into related supplemental securities
loan agreements with each Forward Counterparty or an affiliate thereof (each, a
"Stock Loan Agreement") and a stock lending agency agreement with UBS Securities
LLC (the "Agency Agreement"). In addition, the Selling Stockholder proposes to
grant to the Underwriters an option to purchase up to 2,789,524 additional
shares of Common Stock to cover over-allotments (the "Option Securities"; the
Option Securities, together with the Underwritten Securities and the Hedge
Securities, being hereinafter called the "Securities"). To the extent there are
no additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the Registration Statement, a
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement, or the issue date of any Preliminary Prospectus or
the Prospectus, as the case may be, deemed to be incorporated therein by
reference. Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with, each
Underwriter and each Forward Counterparty as set forth below in this
Section 1(a).
(i) The Company meets the requirements for use of Form S-3 under
the Act and has prepared and filed with the Commission a registration
statement (file number 333-105408) on Form S-3, including a related
preliminary prospectus, for registration under the Act of the offering
and sale of the Securities. The Company may have filed one or more
amendments thereto, including a related preliminary prospectus, each
of which has previously been furnished to you. The Company will next
file with the Commission one of the following: either (1) prior to the
Effective Date of such registration statement, a further amendment to
such registration statement, (including the form of final prospectus)
or (2) after the Effective Date of such registration statement, a
final prospectus in accordance with Rules 430A and 424(b). In the case
of clause (2), the Company has included in such
2
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in such registration statement and
the Prospectus as of the Effective Date. As filed, such amendment and
form of final prospectus, or such final prospectus, shall contain all
Rule 430A Information, together with all other such required
information, and, except to the extent the Representatives shall agree
in writing to a modification, shall be in all substantive respects in
the form furnished to you prior to the Execution Time or, to the
extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made
therein (excluding Exchange Act filings incorporated therein by
reference).
(ii) On the Effective Date, the Registration Statement (and any
amendment or supplement thereto) did or will, and when the Prospectus
is first filed (if required) in accordance with Rule 424(b) and on the
Closing Date (as defined herein) and on any date on which Option
Securities are purchased, if such date is not the Closing Date (a
"settlement date"), the Prospectus (and any amendments or supplements
thereto) will, comply in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules
thereunder; on the Effective Date and at the Execution Time, the
Registration Statement (and any amendment or supplement thereto) did
not or will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and,
on the Effective Date, the Prospectus, if not filed pursuant to Rule
424(b), will not, and on the date of any filing pursuant to Rule
424(b) and on the Closing Date and any settlement date, the Prospectus
(together with any amendment or supplement thereto) will not, include
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties in this paragraph (ii) as to the information contained in
or omitted from the Registration Statement or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity
with the Selling Stockholder Information or other information
furnished in writing to the Company by or on behalf of any Underwriter
or Forward Counterparty through the Representatives specifically for
inclusion in the Registration Statement or the Prospectus (or any
amendment or supplement thereto); and no order preventing or
suspending the use of the Registration Statement has been issued by
the Commission;
(iii) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
3
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
the Selling Stockholder Information or other information furnished in
writing to the Company by the Forward Counterparty or an Underwriter
through the Representatives expressly for use in the Prospectus as
amended or supplemented;
(iv) Neither the Company nor any of its subsidiaries, including
the Partnership, has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus, as amended or supplemented; and, since the respective
dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any change in the capital stock
or partnership interests of the Company or any of its subsidiaries
(including the Partnership) (other than issuances of capital stock or
partnership interests in connection with employee benefit plans,
dividend reinvestment plans, the exercise of options, the exchange of
Partnership units and the payment of earn-outs pursuant to contractual
commitments) or in the partners' capital of the Partnership or any of
its subsidiaries, any change in mortgage loans payable or long-term
debt of the Company or any of its subsidiaries (including the
Partnership) in excess of $20,000,000 or in the mortgage loans payable
or long-term debt of the Partnership or any of its subsidiaries or any
material adverse change in excess of $20,000,000, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity,
partners' capital or results of operations of the Company and its
subsidiaries (including the Partnership), otherwise than as set forth
or contemplated in the Prospectus;
4
(v) The Company and its subsidiaries (including the Partnership)
have good and marketable title in fee simple to all real property and
good and marketable title to all personal property owned by them, in
each case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not materially
affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company and its
subsidiaries (including the Partnership); and any real property and
buildings held under lease by the Company and its subsidiaries
(including the Partnership) are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries (including
the Partnership);
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Florida, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, as
amended or supplemented, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; the
Partnership has been duly organized and is validly existing in good
standing under the laws of the State of Delaware, with power and
authority to own its properties and conduct its business as described
in the Prospectus, as amended or supplemented, and has been duly
qualified as a foreign partnership for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; and each subsidiary of the Company has been duly
incorporated or organized and is validly existing as a corporation or
other entity in good standing under the laws of its jurisdiction of
incorporation or organization;
(vii) All of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid
and non assessable; the capital stock of the Company conforms in all
material respects to the description thereof in the Prospectus, as
amended or supplemented; and, except as set forth on Exhibit A, all of
the issued shares of capital stock or other equity interests of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non assessable and (except as set forth on
Exhibit A and directors'
5
qualifying shares) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims; all of
the issued partnership interests of the Partnership have been duly and
validly authorized and issued and are fully paid and non assessable;
(viii) The Securities have been duly and validly authorized and
issued and are fully paid and non-assessable; and the Securities
conform to the description thereof contained in the Registration
Statement and the Prospectus, as amended or supplemented;
(ix) This Agreement has been duly authorized, executed and
delivered by the Company;
(x) None of the transactions contemplated by this Agreement
(excluding the Forward Purchase Contracts and the Stock Loan
Agreements) will violate or result in a violation of Section 7 of the
Exchange Act, or any regulation promulgated thereunder, including,
without limitation, Regulations T, U, and X of the Board of Governors
of the Federal Reserve System;
(xi) Prior to the date hereof, neither the Company nor any of its
affiliates (including the Partnership) has taken any action which is
designed to or which has constituted or which might have been expected
to cause or result in stabilization or manipulation of the price of
any security of the Company in connection with the offering of the
Securities;
(xii) The execution and delivery by the Company of this
Agreement, the compliance by the Company with all of the provisions
hereof and the consummation of the transactions by the Company herein
contemplated, and, to its knowledge, the sale of the Securities and
the compliance by the Company with all of the provisions of the
Securities and the consummation of the transactions by the parties
other than the Company herein contemplated, will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, (i) any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries (including the Partnership) is a
party or by which the Company or any of its subsidiaries (including
the Partnership) is bound or to which any of the property or assets of
the Company or any of its subsidiaries (including the Partnership) is
subject, (ii) the provisions of the Articles of Incorporation (other
than Sections 5.2(a), (b), (c) and (f) of the Articles of
Incorporation to the extent addressed by paragraph (xix) below) or
By-laws of the Company, the Certificate of Limited Partnership or
partnership agreement of the Partnership or (iii) any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the
6
Company or any of its subsidiaries (including the Partnership) or any
of their properties other than, in the case of clauses (i) and (iii),
such breaches or violation which, if determined adversely to the
Company, would not reasonably be expected to have a material adverse
effect on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries taken as a whole or on the consummation of the
transactions contemplated herein; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the sale of
the Securities or the consummation by the Company of the transactions
contemplated by this Agreement, except such as have been, or will have
been prior to the Closing Date (as defined in Section 3 hereof),
obtained under the Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws or the rules of the National Association
of Securities Dealers Inc. or the New York Stock Exchange, Inc. in
connection with the purchase and distribution of the Securities by the
Underwriters;
(xiii) Neither the Company nor any of its subsidiaries (including
the Partnership) is in violation of its Articles of Incorporation,
By-laws, Certificate of Limited Partnership or partnership agreement
or in default in the performance or observance of any material
obligation, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound;
(xiv) The statements set forth in the Registration Statement and
the Prospectus under the captions "Description of the Capital Stock",
"Federal Income Tax Considerations" and "Plan of Distribution" (other
than the Selling Stockholder Information and other information
furnished in writing to the Company by or on behalf of any Underwriter
or Forward Counterparty) and the statements set forth in the
Prospectus Supplement under caption "Underwriting" (other than the
Selling Stockholder Information and other information furnished in
writing to the Company by or on behalf of any Underwriter or Forward
Counterparty) are, insofar as such statements constitute a summary of
the terms of the Securities and the laws and documents referred to
therein, accurate and complete in all material respects;
(xv) Other than as set forth in the Prospectus, as amended or
supplemented, there are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries (including the
Partnership) is a party or of which any property of the Company or any
of its subsidiaries (including the Partnership) is the subject which,
if determined adversely to
7
the Company or any of its subsidiaries (including the Partnership),
would individually or in the aggregate have a material adverse effect
on the current or future financial position, stockholders' equity,
partners' capital or results of operations of the Company and its
subsidiaries (including the Partnership); and, to the best of the
Company's knowledge and the Partnership's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(xvi) The Company has qualified to be taxed as a real estate
investment trust pursuant to Sections 856 through 860 of the Code, for
each of the fiscal years from its inception through the most recently
completed fiscal year and the Company's present and contemplated
organization, ownership, method of operation, assets and income,
taking into account the consummation of the transactions contemplated
herein, are such that the Company is in a position under present law
to so qualify for the current fiscal year and in the future;
(xvii) Neither the Company nor the Partnership has knowledge of
(a) the presence of any hazardous substances, hazardous materials,
toxic substances or waste materials (collectively, "Hazardous
Materials") on any of the properties owned by it in violation of law
or in excess of regulatory action levels or (b) any unlawful spills,
releases, discharges or disposal of Hazardous Materials that have
occurred or are presently occurring on or off such properties as a
result of any construction on or operation and use of such properties,
which presence or occurrence would materially adversely affect the
condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company or the Partnership; and in
connection with the construction on or operation and use of the
properties owned by the Company and the Partnership, neither has any
knowledge of any material failure to comply with all applicable local,
state and federal environmental laws, regulations, agency
requirements, ordinances and administrative and judicial orders;
(xviii) The various actions of the Company's Board of Directors
waiving the Ownership Limit (as defined by the Company's Articles of
Incorporation) for the Selling Stockholder, the Underwriters and the
Forward Counterparties, as set forth in the resolutions adopted June
11, 2003 (together, the "Board Action"), were duly authorized, are
legal, valid and binding on the Company and remain in full force and
effect as of the date hereof;
(xix) This Agreement and the Confirmations (i) will not result in
a violation by the Underwriters or the Forward Counterparties and
their affiliates of the 7 % Ownership Limit for Common Stock that are
the
8
subject of this Agreement and the Confirmations (including, for this
purpose, Common Stock loaned to the Forward Counterparties in
connection with the Confirmations), other than Common Stock, if any,
constituting more than 9.8% by value of the Company's outstanding
capital stock (after giving effect to any Common Stock repurchased by
the Company pursuant to the purchase and sale agreement between the
Company and the Selling Stockholder with respect to $150,000,000 of
Common Stock) during the applicable term of this Agreement and the
Confirmations; provided that no Person (as defined in the Company's
Articles of Incorporation) who is an individual as defined in section
542(a)(2) of the Code (as modified by section 856(h) of the Code)
becomes the Beneficial Owner (as defined in the Company's Articles of
Incorporation) of more than 9.8% by value of the Company's capital
stock solely by reason of directly or indirectly acquiring ownership
of capital stock of the applicable Underwriter or Forward Counterparty
(disregarding any shares of the Company's capital stock other than
those owned by the applicable Underwriter or Forward Counterparty and
their subsidiaries); and provided, further, that the percentage limits
referred to herein shall be adjusted upward appropriately in the event
of any repurchases of Common Stock by the Company other than
repurchases pursuant to the purchase and sale agreement between the
Company and the Selling Stockholder referred to herein; and (ii) will
not result in a violation by the Underwriters or the Forward
Counterparties and their affiliates of the Related Tenant Limit (as
defined by the Company's Articles of Incorporation) for the number of
Common Stock that are the subject of this Agreement and the
Confirmations (including, for this purpose, Common Stock loaned to the
Forward Counterparties in connection with this Agreement and the
Confirmations), unless and except to the extent that (1) an
Underwriter or a Forward Counterparty and its affiliates directly own
or Constructively Own (as defined by the Company's Articles of
Incorporation, but without regard to this Agreement and the
Confirmations) Common Stock that constitutes more than 9.8% by value
of the Company's outstanding capital stock (after giving effect to any
Common Stock repurchased by the Company pursuant to the purchase and
sale agreement referred to herein) less the number of Common Stock
subject to this Agreement and the Confirmations entered into by such
Underwriter or Forward Counterparty and its affiliates during the
applicable term of this Agreement and the Confirmations or (2) the
Common Stock subject to this Agreement and the Confirmations entered
into by an Underwriter or a Forward Counterparty and its affiliates
during the applicable term of this Agreement and the Confirmations
exceeds 9.8% by value of the Company's outstanding capital stock
(after giving effect to any Common Stock repurchased by the Company
pursuant to the purchase and sale agreement referred to herein).;
9
(xx) Neither the Company nor the Partnership is, and after giving
effect to the offering and sale of the Securities, will be an
"investment company", or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act; and
(xxi) KPMG LLP, who have certified certain financial statements
of the Company and its subsidiaries and the Partnership and its
subsidiaries, are independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter and to each Forward
Counterparty.
(b) The Selling Stockholder represents and warrants to, and agrees
with, each Underwriter and Forward Counterparty that:
(i) The Selling Stockholder has a security entitlement (within
the meaning of Section 8-102(a)(17) of the UCC) to the Securities
maintained in a securities account on the books of UBS Financial
Services Inc. free and clear of all liens, encumbrances, equities and
claims, and, upon payment for the Underwritten Securities as provided
in this Agreement and the crediting of such shares on the books of DTC
to the securities accounts (within the meaning of Section 8-501 of the
UCC) of the various Underwriters (assuming that each of the
Underwriters lacks notice of any "adverse claim" (within the meaning
of Section 8-102 of the UCC) to the Securities), (A) each of the
Underwriters will acquire valid "security entitlements" in respect of
the Underwritten Securities purchased by such Underwriter (within the
meaning of Section 8-102 of the UCC) and (B) no action based on any
"adverse claim" (within the meaning of Section 8-102 of the UCC) to
the Underwritten Securities, whether framed in conversion, replevin,
constructive trust, equitable lien or other theory, may be asserted
against any of the Underwriters with respect to such security
entitlements;
(ii) This Agreement has been duly authorized, executed and
delivered by the Selling Stockholder; assuming due authorization,
execution and delivery by the other parties hereto, this Agreement
constitutes and, upon execution and delivery of the Confirmations, the
Confirmations will constitute, valid and legally binding agreements of
the Selling Stockholder enforceable against the Selling Stockholder in
accordance with their respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general
10
applicability relating to or affecting creditors' rights and to
general equity principles;
(iii) The Selling Stockholder has not taken, directly or
indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities;
(iv) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the
Selling Stockholder of the transactions contemplated herein have been
obtained, except (1) such as may have been obtained under the Act, (2)
such as may be required to be obtained by the Company or the
Underwriters under the rules of the National Association of Securities
Dealers, Inc. or the New York Stock Exchange, and (3) such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters and such other approvals as have been obtained; and
(v) Neither the sale of the Securities being sold by the Selling
Stockholder nor the consummation of any other of the transactions
herein contemplated by the Selling Stockholder or the fulfillment of
the terms hereof by the Selling Stockholder will conflict with, result
in a breach or violation of, or constitute a default under (i) any law
applicable to the Selling Stockholder, (ii) the charter or by-laws of
the Selling Stockholder or (iii) the terms of any indenture or other
agreement or instrument to which the Selling Stockholder or any of its
subsidiaries is a party or bound, or any judgment, order or decree
applicable to the Selling Stockholder or any of its subsidiaries of
any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Selling Stockholder or any
of its subsidiaries, other than, in the case of clauses (i) and (iii),
such breaches or violation which, if determined adversely to the
Selling Stockholder, would not reasonably be expected to have a
material adverse effect on the consummation of the transactions
contemplated herein.
(vi) In respect of any statements in or omissions from the
Registration Statement or the Prospectus or any amendments or
supplements thereto made in reliance upon and in conformity with the
Selling Stockholder Information, the Selling Stockholder hereby makes
the same representations and warranties to each Underwriter as the
Company makes to such Underwriter under paragraph (a)(ii) of this
Section (excluding any proviso); and
11
(vii) The execution and delivery of the Forward Purchase
Contracts do not, and the performance of the Forward Purchase
Contracts by the parties thereto in accordance with their respective
terms will not, violate Section 7 of the Exchange Act or Regulations
T, U or X of the Board of Governors of the Federal Reserve System; and
the execution and delivery of the Stock Loan Agreements do not, and
the performance of the Stock Loan Agreements by the parties thereto in
accordance with their respective terms and the Agency Agreement will
not, violate Section 7 of the Exchange Act or Regulations T, U or X of
the Board of Governors of the Federal Reserve System.
Any certificate signed by any officer of the Selling Stockholder and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Selling Stockholder, as to matters covered thereby, to each
Underwriter and to each Forward Counterparty.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Selling Stockholder
agrees to sell to each Underwriter, and each Underwriter agrees, severally
and not jointly, to purchase from the Selling Stockholder, at a purchase
price of $31.1355 per share, the amount of the Underwritten Securities set
forth opposite such Underwriter's name in Schedule I hereto; and (ii)
subject to the terms conditions and in reliance upon the representations
and warranties herein set forth, each Forward Counterparty, severally and
not jointly, agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from
each Forward Counterparty, at a purchase price of $31.1355 per share, that
proportion of the number of the Hedge Securities set forth opposite the
name of such Forward Counterparty in Schedule II which the number of
Underwritten Securities set forth in Schedule I hereto set forth opposite
the name of each Underwriter bears to the total number of Underwritten
Securities.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Selling Stockholder
hereby grants an option to the several Underwriters to purchase, severally
and not jointly, up to 2,789,524 Option Securities at the same purchase
price per share as the Underwriters shall pay for the Underwritten
Securities. Said option may be exercised only to cover over-allotments in
the sale of the Underwritten Securities by the Underwriters. Said option
may be exercised in whole or in part at any time on or before the 30th day
after the date of the Prospectus upon written or telegraphic notice by the
Representatives to the Selling Stockholder setting forth the number of
shares of the Option Securities as to which the several Underwriters are
exercising the option and the settlement date. The number of shares of the
Option Securities to be purchased by each Underwriter shall be the same
percentage of the total number of shares of the Option Securities to be
purchased by
12
the several Underwriters as such Underwriter is purchasing of the
Underwritten Securities, subject to such adjustments as you in your
absolute discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Securities, the Hedge Securities and the Option Securities (if the option
provided for in Section 2(b) hereof shall have been exercised on or before the
third Business Day prior to the Closing Date) shall be made at 10:00 AM, New
York City time, on June 24, 2003, or at such time on such later date not more
than three Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement between the
Representatives, the Forward Counterparties and the Selling Stockholder or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the respective aggregate purchase price thereof to or upon
the order of: (a) in the case of the Underwritten Securities, and the Option
Securities, the Selling Stockholder; and (b) in the case of the Hedge
Securities, the Forward Counterparties, in each case by wire transfer payable in
same-day funds to an account specified by the recipient. Delivery of the
Underwritten Securities, the Option Securities and the Hedge Securities shall be
made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
The Selling Stockholder will pay all applicable state transfer taxes, if
any, involved in the transfer to the several Underwriters of the Securities to
be purchased by them from the Selling Stockholder and the respective
Underwriters will pay any additional stock transfer taxes involved in further
transfers by them.
If the option provided for in Section 2(b) hereof is exercised after the
third Business Day prior to the Closing Date, the Selling Stockholder will
deliver the Option Securities (at the expense of the Selling Stockholder) to the
Representatives, at 388 Greenwich Street, New York, New York, on the date
specified by the Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Selling Stockholder by wire transfer payable in same-day funds to an account
specified by the Selling Stockholder. If settlement for the Option Securities
occurs after the Closing Date, the Company and the Selling Stockholder will
deliver to the Representatives on the settlement date for the Option Securities,
and the obligation of the Underwriters to purchase the Option Securities shall
be conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
13
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the
Prospectus.
5. Agreements.
(a) The Company agrees with the several Underwriters and the Selling
Stockholder that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereof, to become effective. Prior to the termination
of the offering of the Securities, the Company will not file any
amendment of the Registration Statement (excluding filings under the
Exchange Act incorporated by reference into the Registration
Statement) or amendment or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished you a
copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the
Prospectus is otherwise required under Rule 424(b), the Company will
cause the Prospectus, properly completed, and any amendment or
supplement thereto to be filed in a form approved by the
Representatives with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (1) when
the Registration Statement, if not effective at the Execution Time,
shall have become effective, (2) when the Prospectus, and any
amendment or supplement thereto, shall have been filed (if required)
with the Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission, (3)
when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or
become effective, (4) of any request by the Commission or its staff
for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any amendment or supplement to the
Prospectus or for any additional information, (5) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (6) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
14
(ii) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or amend or
supplement the Prospectus to comply with the Act or the Exchange Act
or the respective rules thereunder, the Company promptly will (1)
notify the Representatives and the Selling Stockholder of such event,
(2) prepare and file with the Commission, subject to the second
sentence of paragraph (i) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect
such compliance and (3) supply any amended or supplemented Prospectus
to you in such quantities as you may reasonably request.
(iii) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(iv) The Company will furnish to the Representatives, the Selling
Stockholder and counsel for the Underwriters and the Selling
Stockholder, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Prospectus and
the Prospectus and any amendment or supplement thereto as the
Representatives may reasonably request.
(v) The Company will arrange, if necessary, for the qualification
of the Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities;
provided that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or to
take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the
Securities, in any jurisdiction where it is not now so subject.
(vi) The Company will not, and will use its good faith efforts to
cause any other holder of Common Stock not to, without the prior
written
15
consent of the Representatives, offer, sell, contract to sell, pledge,
or otherwise dispose of (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
subsidiary of the Company or any person in privity with the Company or
any subsidiary of the Company), directly or indirectly, under any
registration statement filed with the Commission or prospectus
supplement relating to an existing shelf registration filed with the
Commission (other than pursuant to registration statements in effect
on the date hereof for the benefit of selling shareholders
thereunder), any other shares of Common Stock or any securities
convertible into, or exercisable, or exchangeable for, shares of
Common Stock or publicly announce an intention to effect any such
transaction, for a period of 90 days after the date of the
Underwriting Agreement; provided, however, that the Company may issue
or sell Common Stock (i) pursuant to any employee stock option plan,
stock ownership plan or dividend reinvestment plan of the Company in
effect at the Execution Time, (ii) upon the conversion of securities
or the exercise of warrants outstanding at the Execution Time, (iii)
upon the redemption of limited partnership units of any subsidiary of
the Company outstanding at the Execution Time, (iv) in connection with
the transactions contemplated in this Underwriting Agreement,
including the forward stock purchase and stock loan agreements with
the Forward Counterparties, and (v) pursuant to an offering by
Citigroup Global Markets Holdings Inc. of debt securities exchangeable
into Common Stock and related forward purchase contracts and stock
loan agreements.
(vii) The Company will comply with all applicable securities and
other applicable laws, rules and regulations, including, without
limitation, the Sarbanes Oxley Act, and to use its reasonable best
efforts to cause the Company's directors and officers, in their
capacities as such, to comply with such laws, rules and regulations,
including, without limitation, the provisions of the Sarbanes Oxley
Act.
(viii) The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably
be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Securities.
(b) The Selling Stockholder agrees with the several Underwriters and
the Company that:
16
(i) The Selling Stockholder will not, without the prior written
consent of the Representatives, offer, sell, contract to sell, pledge,
or otherwise dispose of, or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition of (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise), directly or
indirectly, any other shares of Common Stock or any securities
convertible into, or exercisable, or exchangeable for, shares of
Common Stock by the Selling Stockholder or any subsidiary of the
Selling Stockholder or any person in privity of contract pursuant to a
contract relating to the disposition of such shares or securities or
transactions which are designed to, or might reasonably be expected
to, result in the disposition of such shares or securities with the
Selling Stockholder or any subsidiary of the Selling Stockholder,
including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish
or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange
Act; or publicly announce an intention to effect any such transaction
(other than the forward sales agreements with the Forward
Counterparties and related stock loan agreements contemplated in this
Agreement or the offering by Citigroup Global Markets Holdings Inc. of
debt securities exchangeable into Common Stock and related forward
purchase contracts and stock loan agreements), for a period of 90 days
after the date of the Underwriting Agreement.
(ii) The Selling Stockholder will not take, directly or
indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(iii) The Selling Stockholder will advise the Representatives
promptly, and if requested by you, will confirm such advice in
writing, so long as delivery of a prospectus relating to the
Securities by an underwriter or dealer may be required under the Act,
of (i) any change in information in the Registration Statement or the
Prospectus relating to the Selling Stockholder or (ii) any new
material information relating to the Company or relating to any matter
stated in the Prospectus which comes to the attention of the Selling
Stockholder.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwritten Securities, the Option Securities
and the Hedge Securities, as the case may be, shall be subject to the accuracy
of the representations and warranties on the part of the Company and the Selling
Stockholder
17
contained herein as of the Execution Time, the Closing Date and any settlement
date pursuant to Section 3 hereof, to the accuracy of the statements of the
Company and the Selling Stockholder made in any certificates pursuant to the
provisions hereof, to the performance by the Company and the Selling Stockholder
of their respective obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Prospectus, or any amendment or supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such amendment or
supplement, will be filed in the manner and within the time period required
by Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Foley & Lardner,
counsel for the Company, to have furnished to the Representatives and the
Forward Counterparties their opinion, dated the Closing Date and addressed
to the Representatives and the Forward Counterparties, to the effect that:
(i) each of the Company and its subsidiaries, including the
Partnership, has been duly incorporated and is validly existing as a
corporation or other organization in good standing under the laws of
the jurisdiction in which it is chartered or organized, with full
corporate power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as described in the
Prospectus, as amended or supplemented, and is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification and is
subject to no material liability or disability by reason of the
failure to be so qualified in any jurisdiction;
(ii) all the outstanding shares of capital stock or partnership
interests of each subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and nonassessable, and,
except as otherwise set forth on Exhibit A or in the Prospectus, as
amended or supplemented, all outstanding shares of capital stock or
partnership interests of such subsidiaries are owned by the Company
either directly or through wholly owned subsidiaries free and clear of
any perfected security
18
interest and, to the knowledge of such counsel, after due inquiry, any
other security interest, claim, lien or encumbrance;
(iii) the Company's authorized equity capitalization is as set
forth in the Prospectus; the capital stock of the Company conforms in
all material respects to the description thereof contained in the
Prospectus; the outstanding shares of Common Stock, including the
Securities, have been duly and validly authorized and issued and are
fully paid and nonassessable; the Securities are duly listed, and
admitted and authorized for trading on the New York Stock Exchange;
the certificates for the Securities are in valid and sufficient form;
other than the Selling Stockholder, the holders of outstanding shares
of capital stock of the Company are not entitled to preemptive or
other rights to subscribe for the Securities arising by operation of
law or the Company's articles of incorporation or By-laws, or, to the
knowledge of such counsel, under any agreement by which the Company is
bound; and, except as set forth in the Prospectus, as amended or
supplemented, to the knowledge of such counsel, no options, warrants
or other rights to purchase, agreements or other obligations to issue,
or rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the Company
are outstanding;
(iv) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Prospectus, and there is no
franchise, contract or other document relating to the Company or its
subsidiaries of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required; and the
statements included or incorporated by reference in the Prospectus
under the headings "Description of Capital Stock", insofar as they
purport to constitute a summary of the terms of the Securities, and
under the headings "Federal Income Tax Considerations" and "Plan of
Distribution" (other than the Selling Stockholder Information) insofar
as such statements summarize legal matters, agreements to which the
Company is a party, documents or proceedings discussed therein, are
accurate and fair summaries of such terms, legal matters, agreements,
documents or proceedings;
(v) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any amendments or
supplements thereto, pursuant to Rule 424(b) has been made in the
manner
19
and within the time period required by Rule 424(b); to the knowledge
of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened and the Registration
Statement and the Prospectus (other than the financial statements and
other financial and statistical information contained therein, as to
which such counsel need express no opinion), each as amended or
supplemented, comply as to form in all material respects with the
applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; and although counsel assumes no
responsibility for the accuracy, completeness or fairness of
statements made therein except to the extent set forth in paragraph
(iv) above, such counsel has no reason to believe that on the
Effective Date or the date the Registration Statement was last deemed
amended the Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus as of its date and on the Closing
Date included or includes any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (in each case, other than the financial
statements and other financial and statistical information contained
therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the Company is not and, after giving effect to the offering
and sale of the Securities as described in the Prospectus, will not be
an "investment company" as defined in the Investment Company Act of
1940, as amended;
(viii) no consent, approval, authorization, filing with or order
of any court or governmental agency or body is required to be obtained
by the Company in connection with the transactions contemplated
herein, except such as have been obtained under the Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated in this Agreement and in the
Prospectus and such other approvals (specified in such opinion) as
have been obtained;
(ix) the execution and delivery by the Company of this Agreement,
its compliance with all of the provisions hereof and the consummation
by the Company of any of the transactions herein contemplated, and, to
the knowledge of such counsel, the sale of the
20
Securities being sold by the Selling Stockholder and the consummation
by the parties other than the Company of any of the transactions
herein contemplated, will not conflict with, result in a breach or
violation of, or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or its subsidiaries pursuant to,
(i) the charter (other than Sections 5.2(a), (b), (c) and (f) of the
Articles of Incorporation to the extent addressed by paragraph (xiii)
below) or by-laws of the Company or its subsidiaries, (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument known to such counsel and to which the Company
or any of its subsidiaries (including the Partnership) is a party or
bound or to which its or their property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree known to
such counsel to be applicable to the Company or its subsidiaries
(including the Partnership) of any court, regulatory body,
administrative agency, governmental body or arbitrator or other
authority having jurisdiction over the Company or its subsidiaries or
any of its or their properties other than, in the case of clauses (ii)
and (iii), such breaches or violation which, if determined adversely
to the Company, would not reasonably be expected to have a material
adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries taken as a whole or on the consummation of the
transactions contemplated herein;
(x) to such counsel's knowledge no holders of securities of the
Company have rights to the registration of such securities under the
Registration Statement; and
(xi) The Company has qualified to be taxed as a real estate
investment trust pursuant to Sections 856 through 860 of the Code for
each taxable year since its inception through the most recently
completed fiscal year, and based on assumptions set forth in the
Prospectus and certain representations of the Company, including but
not limited to those set forth in an Officer's Certificate, the
Company's present and contemplated organization, ownership, method of
operation, assets and income are such that the Company is in a
position under present law to so qualify for the current fiscal year
and in the future.
(xii) The various actions of the Company's Board of Directors
waiving the Ownership Limit (as defined by the Company's Articles of
Incorporation) for the Selling Stockholder, the Underwriters and the
Forward Counterparties, as set forth in the resolutions adopted June
11, 2003 (together, the "Board Action"), were duly authorized, are
legal, valid
21
and binding on the Company and remain in full force and effect as of
the date hereof.
(xiii) This Agreement and the Confirmations (i) will not result
in a violation by the Underwriters or the Forward Counterparties and
their affiliates of the 7% Ownership Limit for Common Stock that are
the subject of this Agreement and the Confirmations (including, for
this purpose, Common Stock loaned to the Forward Counterparties in
connection with this Agreement and the Confirmations), other than
Common Stock, if any, constituting more than 9.8% by value of the
Company's outstanding capital stock (after giving effect to any Common
Stock repurchased by the Company pursuant to the purchase and sale
agreement between the Company and the Selling Stockholder with respect
to $150,000,000 of Common Stock) during the applicable term of this
Agreement and the Confirmations; provided that no Person (as defined
in the Company's Articles of Incorporation) who is an individual as
defined in section 542(a)(2) of the Code (as modified by section
856(h) of the Code) becomes the Beneficial Owner (as defined in the
Company's Articles of Incorporation) of more than 9.8% by value of the
Company's capital stock solely by reason of directly or indirectly
acquiring ownership of capital stock of the applicable Underwriter or
Forward Counterparty (disregarding any shares of the Company's capital
stock other than those owned by the applicable Underwriter or Forward
Counterparty and their subsidiaries); and provided, further, that the
percentage limits referred to herein shall be adjusted upward
appropriately in the event of any repurchases of Common Stock by the
Company other than repurchases pursuant to the purchase and sale
agreement between the Company and the Selling Stockholder referred to
herein; and (ii) will not result in a violation by the Underwriters or
the Forward Counterparties and their affiliates of the Related Tenant
Limit (as defined by the Company's Articles of Incorporation) for the
number of Common Stock that are the subject of this Agreement and the
Confirmations (including, for this purpose, Common Stock loaned to the
Forward Counterparties in connection with this Agreement and the
Confirmations), unless and except to the extent that (1) an
Underwriter or a Forward Counterparty and its affiliates directly own
or Constructively Own (as defined by the Company's Articles of
Incorporation, but without regard to this Agreement and the
Confirmations) Common Stock that constitute more than 9.8% by value of
the Company's outstanding capital stock (after giving effect to any
Common Stock repurchased by the Company pursuant to the purchase and
sale agreement referred to herein) less the number of Common Stock
subject to this Agreement and the Confirmations entered into by such
Underwriter or Forward Counterparty and its affiliates during the
applicable term of this Agreement and the Confirmations or (2) the
22
Common Stock subject to this Agreement and the Confirmations entered
into by an Underwriter or a Forward Counterparty and their affiliates
during the applicable term of this Agreement and the Confirmations
exceeds 9.8% by value of the Company's outstanding capital stock
(after giving effect to any Common Stock repurchased by the Company
pursuant to the purchase and sale agreement referred to herein);
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Florida or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of fact,
to the extent they deem proper, on certificates of responsible officers of
the Company and public officials. References to the Prospectus in this
paragraph (b) shall also include any amendments or supplements thereto at
the Closing Date.
(c) The Selling Stockholder shall have requested and caused Hogan &
Hartson L.L.P., counsel for the Selling Stockholder, to have furnished to
the Representatives and the Forward Counterparties their opinion, dated the
Closing Date and addressed to the Representatives and the Forward
Counterparties, to the effect that:
(i) upon payment for the Undewritten Securities as provided in
this Agreement and the crediting of such shares on the books of DTC to
the securities accounts (within the meaning of Section 8-501 of the
UCC) of the various Underwriters (assuming that each of the
Underwriters lacks notice of any "adverse claims" (within the meaning
of Section 8-102 of the UCC) to the Underwritten Securities, (A) the
Underwriters will acquire valid security entitlements in respect of
the Underwritten Securities (within the meaning of Section 8-102 of
the UCC) and (B) no action based on any "adverse claims" (within the
meaning of Section 8-102 of the UCC) to the Underwritten Securities,
whether framed in conversion, replevin, constructive trust, equitable
lien or other theory, may be asserted against any of the Underwriters
with respect to such security entitlements; and
(ii) the statements in the (A) second full paragraph under the
caption "Prospectus Supplement Summary-The Offering-Concurrent
Offering" and "The Offering-Concurrent Offering", (B) ninth full
paragraph under the caption "Selling Shareholder" in the Prospectus
Supplement and (C) fifth (excluding the last two sentences thereof)
and seventh full paragraphs under the caption "Underwriting", to the
extent that such statements summarize the provisions of the agreements
or
23
documents identified therein, have been reviewed by us, and are
correct in all material respects; and
(iii) the Forward Purchase Contracts and the Stock Loan
Agreements do not, and the performance of the obligations thereunder,
all in accordance with the terms of the Forward Purchase Contracts,
the Stock Loan Agreements and the Agency Agreement, will not violate
Section 7 of the Exchange Act or Regulations T, U and X of the Board
of Governors of the Federal Reserve System.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters, and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Selling Stockholder and public officials.
(d) The Selling Stockholder shall have requested and caused Jeffrey
Klopf, General Counsel of the Selling Stockholder, to have furnished to the
Representatives and the Forward Counterparties his opinion, dated the
Closing Date and addressed to the Representatives and the Forward
Counterparties, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by the Selling Stockholder and the Selling Stockholder has
full legal right and authority to sell, transfer and deliver the
Securities in the manner provided in this Agreement; and
(ii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the
Selling Stockholder of the transactions contemplated herein, except
such as may have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such opinion) as
have been obtained; and
(iii) neither the sale of the Securities being sold by the
Selling Stockholder nor the consummation of any other of the
transactions herein contemplated by the Selling Stockholder or the
fulfillment of the terms hereof by the Selling Stockholder will
conflict with, result in a breach or violation of, or constitute a
default under any law (excluding Section 7 of the Exchange Act and
Regulations T, U and X of the Board of Governors of the Federal
Reserve System) or the charter or By-laws of the Selling Stockholder
or the terms of any indenture or other agreement or instrument known
to such counsel and to which the Selling Stockholder or any of its
subsidiaries is a party or bound, or any judgment, order or decree
known to such counsel to be applicable to the Selling Stockholder or
24
any of its subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the
Selling Stockholder or any of its subsidiaries.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent he deems proper, on certificates of responsible
officers of the Selling Stockholder and public officials.
(e) The Representatives and the Forward Counterparties shall have
received from Sullivan & Cromwell LLP, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the Securities,
the Registration Statement, the Prospectus (together with any amendment or
supplement thereto) and other related matters as the Representatives may
reasonably require, and the Company and the Selling Stockholder shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives and the
Forward Counterparties a certificate of the Company, signed by the Chairman
of the Board or the President and the principal financial or accounting
officer of the Company or two other authorized signatories, dated the
Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus, any
amendments or supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus (exclusive of
any amendment or supplement thereto), there has been no material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any amendment or supplement thereto).
25
(g) The Selling Stockholder shall have furnished to the
Representatives a certificate, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Selling
Stockholder or two other authorized signatories, dated the Closing Date, to
the effect that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus, any amendment or supplement to the
Prospectus and this Agreement and that the representations and warranties
of the Selling Stockholder in this Agreement are true and correct in all
material respects on and as of the Closing Date to the same effect as if
made on the Closing Date.
(h) The Company shall have requested and caused KPMG LLP to have
furnished to the Representatives and the Selling Stockholder, at the
Execution Time and at the Closing Date, letters, dated respectively as of
the Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable rules and regulations adopted by the Commission
thereunder and that they have performed a review of the unaudited interim
financial information of the Company for the three-month period ended March
31, 2003, and as at March 31, 2003 in accordance with Statement on Auditing
Standards No. 100, and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules and, if applicable, pro forma financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus and reported on by them comply as to form
in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related rules and regulations
adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their
limited review, in accordance with standards established under
Statement on Auditing Standards No. 100, of the unaudited interim
financial information for the three-month period ended March 31, 2003,
and as at March 31, 2003, incorporated by reference in the
Registration Statement and the Prospectus; carrying out certain
specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily
reveal matters of significance with respect to the comments set forth
in such letter; a reading of the minutes of the meetings of the
stockholders, directors and the executive, audit and investment
committees of the Company and its subsidiaries; and inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as to
26
transactions and events subsequent to December 31, 2003, nothing came
to their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus do not comply as to form in all material respects with
applicable accounting requirements of the Act and with the
related rules and regulations adopted by the Commission with
respect to financial statements included or incorporated by
reference in quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus;
(2) with respect to the period subsequent to March 31, 2003,
there were any changes, at a specified date not more than five
days prior to the date of the letter, in the consolidated capital
stock (other than issuances of capital stock in connection with
dividend reinvestment plans, upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and
upon conversions of convertible securities, in each case which
were outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus) or any increase
in the consolidated mortgage loans payable or long-term debt of
the Company and its subsidiaries or the Partnership and its
subsidiaries, or any decreases in total assets or stockholders'
equity or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each
case as compared with the amounts shown on the March 31, 2003
consolidated balance sheet included or incorporated by reference
in the Registration Statement and the Prospectus, or for the
period from April 1, 2003 to such specified date there were any
decreases, as compared with the comparable period of the
preceding year consolidated net revenues or operating profit or
the total or per share amounts of consolidated net income or
other items specified by the Representatives, or any increases in
any items specified by the Representatives, in each case as
compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
Representatives, except in all instances for changes or decreases
set forth in such letter, in which case the letter shall be
accompanied by an explanation by
27
the Company as to the significance thereof unless said
explanation is not deemed necessary by the Representatives; or
(3) the information included or incorporated by reference in
the Registration Statement and Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information), and Item 503(d) (Ratio of
Earnings to Fixed Charges) is not in conformity with the
applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Prospectus and in Exhibit
12 to the Registration Statement, including the information set forth
under the captions "Selected Consolidated Financial Data" in the
Prospectus and the information included or incorporated by reference
in Items 1, 6 and 7 of the Company's Annual Report on Form 10-K,
incorporated by reference in the Registration Statement and the
Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q, incorporated by reference in the
Registration Statement and the Prospectus, agrees with the accounting
records of the Company and its subsidiaries, excluding any questions
of legal interpretation.
References to the Prospectus in this paragraph (g) include any
amendment or supplement thereto at the date of the letter.
(i) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any amendment or
supplement thereto), there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (g) of this
Section 6 or (ii) any change, or any development involving a prospective
change, in or affecting the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any amendment or supplement thereto) the effect of which, in
any case referred to in clause (i) or (ii) above, is, in the sole judgment
of the Representatives, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or delivery of the Securities
as contemplated by the
28
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any amendment or supplement thereto).
(j) Prior to the Closing Date, the Company and the Selling Stockholder
shall have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably request.
(k) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating.
(l) At the Execution Time, the Company shall have used good faith
effort to furnish to the Representatives a letter substantially in the form
of Exhibit B hereto from each executive officer and director of the Company
addressed to the Representatives.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement
shall not be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any
time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company and the Selling Stockholder in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Sullivan & Cromwell LLP, counsel for the
Underwriters, at 125 Broad Street, New York, New York 10004, on the Closing
Date.
7. Expenses. The Company and the Selling Stockholder covenant and agree
with each of the several Underwriters and each of the several Forward
Counterparties that, whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, (i) the Selling
Stockholder will pay or cause to be paid all registration, filing and stock
exchange or National Association of Securities Dealers fees, all fees and
expenses of complying with securities or blue sky laws, all printing expenses,
messenger and delivery expenses, any fees and disbursements of any counsel
retained by the Selling Stockholder, all underwriting discounts and commissions
and transfer taxes, if any, and any premiums and other costs of policies of
insurance obtained by the Selling Stockholder against liabilities arising out of
the public offering of the Securities and (ii) the Company will pay or cause to
be paid the fees and disbursements of counsel and independent public accountants
for the Company incurred in connection with the registration of the Securities
under the Act, including the expenses of any special audits or "cold comfort"
letters required by or incident to such registration, and any premiums and other
costs of policies of insurance obtained by the Company
29
against liabilities arising out of the sale of the Securities; provided that the
Selling Stockholder shall reimburse the Company for the first $25,000 of fees
and disbursements of counsel and independent public accountants for the Company
included in connection with the registration of the Securities; provided,
however, that the Underwriters agree to pay the Selling Stockholder up to an
amount as agreed by the Underwriters and the Selling Stockholder in
reimbursement of such expenses. It is understood, however, that, except as
provided in this Section and Section 8 hereof, the Underwriters and the Forward
Counterparties will pay all of their own costs and expenses, including the fees
of their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the Selling
Stockholder, each Underwriter and each Forward Counterparty, the directors,
officers, employees and agents of the Selling Stockholder, each Underwriter
and each Forward Counterparty and each person who controls the Selling
Stockholder or any Underwriter or Forward Counterparty within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for
the registration of the Securities as originally filed or in any amendment
thereof, or in any Preliminary Prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by the Selling Stockholder or on behalf of any Underwriter or
Forward Counterparty through the Representatives specifically for inclusion
therein; provided, further, that with respect to any untrue statement or
omission of material fact made in any Preliminary Prospectus, the indemnity
agreement contained in this Section 8(a) shall not inure to the benefit of
any Underwriter from whom the person asserting any such loss, claim, damage
or liability purchased the securities concerned, to the extent that any
such loss, claim, damage or liability of such Underwriter occurs under the
circumstance where it shall have been determined by a court of competent
jurisdiction by final and nonappealable judgment that (w) the Company had
previously furnished copies of the Prospectus to the Representatives, (x)
delivery of the Prospectus was required by the Act to be made to such
person, (y) the untrue statement or omission of a material fact contained
in the
30
Preliminary Prospectus was corrected in the Prospectus and (z) there was
not sent or given to such person, at or prior to the written confirmation
of the sale of such securities to such person, a copy of the Prospectus.
This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) The Selling Stockholder agrees to indemnify and hold harmless the
Company, each Underwriter and Forward Counterparty, the directors,
officers, employees and agents of the Company, each Underwriter and Forward
Counterparty, and each person who controls the Company or any Underwriter
or Forward Counterparty within the meaning of either the Act or the
Exchange Act to the same extent (excluding any provisos) as the foregoing
indemnity from the Company in Section 8(a), but only with reference to
written information furnished to the Company by or on behalf of the Selling
Stockholder specifically for the inclusion in the documents referred to in
the foregoing indemnity (the "Selling Stockholder Information"). The
Company, the Forward Counterparties and the Underwriters acknowledge that
the statements identified in writing to the Company constitute the only
information furnished in writing by or on behalf of the Selling Stockholder
for inclusion in any Preliminary Prospectus or the Prospectus.
(c) Each Forward Counterparty severally and not jointly agrees to
indemnify and hold harmless the Company, the Selling Stockholder, the
Underwriters, the directors, officers employees and agents of the Company,
the Selling Stockholder and each Underwriter, and each person who controls
the Company, the Selling Stockholder or any Underwriter within the meaning
of either the Act or the Exchange Act, to the same extent (excluding any
provisos) as the foregoing indemnity from the Company in Section 8(a), but
only with reference to written information relating to such Forward
Counterparty furnished to the Company by or on behalf of such Forward
Counterparty through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Forward Counterparty may
otherwise have. The Company, the Selling Stockholder and the Underwriters
acknowledge that the statements identified in writing to the Company
constitute the only information furnished in writing by or on behalf of the
several Forward Counterparties for inclusion in any Preliminary Prospectus
or the Prospectus.
(d) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, the Selling Stockholder, the Forward
Counterparties, the directors, officers employees and agents of the
Company, the Selling Stockholder and each Forward Counterparty, and each
person who controls the Company, the Selling Stockholder or any Forward
Counterparty within the meaning of either the Act or the Exchange Act, to
the same extent (excluding any provisos) as the foregoing indemnity from
the Company in Section 8(a), but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of
such Underwriter through the Representatives specifically for inclusion in
the documents referred to in the
31
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company, the
Selling Stockholder and the Forward Counterparties acknowledge that the
statements identified in writing to the Company constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in any Preliminary Prospectus or the Prospectus.
(e) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a), (b), (c) or (d)
above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a), (b), (c) or
(d) above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of one such separate counsel (regardless of the number of indemnified
parties) if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict
of interest, (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
32
(f) In the event that the indemnity provided in paragraph (a), (b),
(c), (d) or (e) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company, the Selling
Stockholder, the Underwriters and the Forward Counterparties severally
agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which the Company, the Selling Stockholder, and one or more of the
Underwriters and Forward Counterparties may be subject in such proportion
as is appropriate to reflect the relative benefits received by the Company,
the Selling Stockholder, the Underwriters and the Forward Counterparties,
respectively, from the offering of the Securities; provided, however, that
in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter
hereunder (with, for purposes of this sentence only, each Forward
Counterparty being considered a single entity with its affiliated
Underwriter with aggregate responsibility not in excess of the underwriting
discount or commission applicable to the Securities purchased by such
affiliated Underwriter hereunder). If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company,
the Selling Stockholder, the Underwriters and the Forward Counterparties
severally shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company,
the Selling Stockholder, the Underwriters and the Forward Counterparties,
respectively, in connection with the statements or omissions which resulted
in such Losses as well as any other relevant equitable considerations.
Benefits received by the Selling Stockholder shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses)
received by the Selling Stockholder plus the total Settlement Amount
received or reasonably expected to be received by the Selling Stockholder
as of the Maturity Date (as such Terms are defined in the Confirmation),
and benefits received by the Underwriters and Forward Counterparties shall
be deemed to be equal to the total underwriting discounts and commissions,
in each case as set forth on the cover page of the Prospectus. Relative
fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
provided by the Company, the Selling Stockholder, the Underwriters or the
Forward Counterparties, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company, the Selling Stockholder, the
Forward Counterparties and the Underwriters agree that it would not be just
and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (e), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls an Underwriter, a
Forward Counterparty or the Selling Stockholder within the meaning of
33
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter, a Forward Counterparty or the Selling Stockholder
shall have the same rights to contribution as such Underwriter, Forward
Counterparty or Selling Stockholder, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and conditions of
this paragraph (e).
(g) The liability of the Selling Stockholder under the Selling
Stockholder's representations and warranties contained in Section 1(b)
hereof and under the indemnity and contribution agreements contained in
this Section 8 shall be limited to an amount equal to total net proceeds
from the offering (before deducting expenses) received by the Selling
Stockholder plus the total Settlement Amount received or reasonably
expected to be received by the Selling Stockholder as of the Maturity Date
(as such Terms are defined in the Confirmation). The Company and the
Selling Stockholder may agree, as among themselves and without limiting the
rights of the Underwriters under this Agreement, as to the respective
amounts of such liability for which they each shall be responsible.
9. Default by an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter, the
Company or the Selling Stockholder. In the event of a default by any Underwriter
as set forth in this Section 9, the Closing Date shall be postponed for such
period, not exceeding five Business Days, as the Representatives shall determine
in order that the required changes in the Registration Statement and the
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company, the Selling Stockholder and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
34
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Selling
Stockholder prior to delivery of and payment for the Securities, if at any time
prior to such time (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities, (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Prospectus (exclusive of any amendment or supplement thereto) or (iv) a
material disruption has occurred in commercial banking or securities settlement
or clearance services in the United States.
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers, the Selling Stockholder and of the Underwriters and the Forward
Counterparties set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter, any Forward Counterparty, the Selling Stockholder or the
Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to Citigroup Global Markets Inc., at 388 Greenwich Street, New
York, New York, 10013, Attention: General Counsel (fax no.: (212) 816-7912) and
Merrill Lynch, Pierce, Fenner & Smith Incorporated, 4 World Financial Center,
New York, New York 10080, Attention: Scott Eisen (fax no.: (212) 449-9143); or
if sent to the Company, will be mailed, delivered or telefaxed to the number and
address of the Company set forth in the Registration Statement; or if sent to
JPMorgan, will be mailed, delivered or telefaxed to 277 Park Avenue, 9th Floor,
New York, New York 10172, at the attention of Henry J. Wilson (fax no.: (212)
622-7358); or if sent to MLI, will be mailed, delivered or telefaxed to Merrill
Lynch International, Merrill Lynch Financial Centre, 2 King Edward Street,
London EC1A 1HQ, Attention: Manager Fixed Income Settlements (fax no.: 207 995
2004; telephone no: 207 995 3769) with a copy to Merrill Lynch & Co. Inc., 4
World Financial Center, 5th Floor, New York, New York 10080, Attention: Equity
Derivatives (fax no.: (212) 449-6576; telephone no.: (212) 449-8637); or if sent
to Wachovia, will be mailed, delivered or telefaxed to 12 East 49th Street, 45th
Floor, New York, New York 10017, Attention: Equity Link Products Documentation
(fax no.: (212) 891-5042); or if sent to the Selling Stockholder, will be
mailed, delivered or telefaxed to c/o GE Capital
35
Real Estate, 292 Long Ridge Road, Stamford, Connecticut 06927, Attention: Legal
Operation/Security Capital (fax no.: (203) 357-6768) and confirmed to it at
Hogan & Hartson L.L.P., 555 13th Street NW, Washington, DC 20004-1109,
Attention: J. Warren Gorrell, Jr. (fax no.: (202) 637-5910).
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only and
shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement, shall
have the meanings indicated.
"7% Ownership Limit" means the Ownership Limit, as such term is
defined in the Company's Articles of Incorporation.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commission" shall mean the Securities and Exchange Commission.
"DTC" shall mean the Depository Trust Company.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
36
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Investment Company Act" shall mean the United States Investment
Company Act of 1940, as amended.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in Section 1(a) above and any preliminary prospectus included
in the Registration Statement at the Effective Date that omits Rule 430A
Information, in each case including the documents incorporated by reference
therein pursuant to the applicable form under the Act, as of the date of
such preliminary prospectus
"Prospectus" shall mean the prospectus relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities included in the Registration
Statement at the Effective Date, in each case including the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the registration statement referred to in Section 1(a)
hereof.
37
"UCC" shall mean the Uniform Commercial Code as currently in effect in
the State of New York.
38
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company, the Selling Stockholder, the Forward Counterparties and the several
Underwriters.
Very truly yours,
Regency Centers Corporation
By: /s/ Martin E. Stein, Jr.
-----------------------------------------
Name: Martin E. Stein, Jr.
Title: Chairman
Security Capital Group Incorporated
By: /s/ Philip A. Mintz
-----------------------------------------
Name: Philip A. Mintz
Title: Vice President
Merrill Lynch International,
by its agent, Merrill Lynch, Pierce, Fenner
& Smith Incorporated
By: /s/ Douglas R. Robinson
-----------------------------------------
Name: Douglas R. Robinson
Title: Managing Director
JPMorgan Chase Bank,
by its agent, J.P. Morgan Securities Inc.
By: /s/ Stephen E. Gray
-----------------------------------------
Name: Stephen E. Gray
Title: Managing Director
Wachovia Bank, National Association
By: /s/ Mary Louise Guttmann
-----------------------------------------
Name: Mary Louise Guttman
Title: Senior Vice President
39
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
By: /s/ Jeff Horowitz
-----------------------------------------
Name: Jeff Horowitz
Title: Managing Director
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By: /s/ Mark E. Hagan
-----------------------------------------
Name: Mark E. Hagan
Title: Vice President
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
40
SCHEDULE I
Number of
Underwritten Number of Hedge
Securities to Securities to
Underwriters be Purchased be Purchased
- ------------ ------------- ---------------
Citigroup Global Markets Inc.............. 5,236,449
Merrill Lynch, Pierce, Fenner &
Smith Incorporated....................... 5,236,449 3,906,667
UBS Securities LLC........................ 3,490,966
J.P. Morgan Securities Inc................ 1,745,484 3,906,667
Wachovia Securities, LLC.................. 1,745,484 3,906,666
Lazard Capital Markets.................... 285,500
Legg Mason Wood Walker, Incorporated...... 285,500
U.S. Bancorp Piper Jaffray Inc............ 285,500
Raymond James & Associates, Inc........... 285,500
Total............................ 18,596,832 11,720,000
SCHEDULE II
Number of
Hedge Securities
Forward Counterparty to be Sold
- -------------------- ----------------
Merrill Lynch International............................. 3,906,667
Wachovia Bank, National Association..................... 3,906,666
JPMorgan Chase Bank..................................... 3,906,667
EXHIBIT B
[Letterhead of executive officer or director of
Corporation]
Regency Centers Corporation
Public Offering of Common Stock
June __, 2003
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
New York, New York 10080
As Representatives of the several Underwriters,
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), among Security Capital
Group Incorporated, a Maryland corporation (the "Selling Stockholder"), Regency
Centers Corporation, a Florida corporation (the "Company"), JPMorgan Chase Bank,
Merrill Lynch International, Wachovia Bank, National Association and each of you
as representatives of a group of Underwriters named therein, relating to an
underwritten public offering of Common Stock, $0.01 par value (the "Common
Stock"), of the Company, and the proposed Underwriting Agreement (the "SynDECS
Underwriting Agreement"), among Citigroup Global Markets Holdings Inc., a New
York corporation ("Holdings"), the Company, the Selling Stockholder, and each of
you as representatives of a group of Underwriters named therein, relating to an
underwritten public offering of SynDECS (Debt Exchangeable for Common Stock)
consisting of the Holdings' Variable Rate Exchange Notes Due June , 2006.
In order to induce you (the "Representatives") and the other Underwriters
to enter into the Underwriting Agreement and SynDECS Underwriting Agreement, as
applicable, the undersigned will not, without the prior written consent of the
Representatives, offer, sell, contract to sell, pledge or otherwise dispose of
(or enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
undersigned or any affiliate of the undersigned or any person in privity with
the undersigned or any affiliate of the undersigned), directly or indirectly,
including the filing (or participation in the filing) of a registration
statement with the Securities and Exchange Commission in respect of, or
establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Securities and Exchange Commission
promulgated thereunder with respect to, any shares of Common Stock or any
securities convertible into Common Stock, or publicly announce an intention to
effect any such transaction, for a period of 90 days after the later of the
dates of the Underwriting Agreement and SynDECS Underwriting Agreement, other
than shares of Common Stock disposed of (i) in connection with the transactions
contemplated in the Underwriting Agreement and the SynDECS Underwriting
Agreement (including the related forward purchase contracts and stock loan
agreements) or (ii) as bona fide gifts, so long as the donee of such gift agrees
in writing to be bound by the restrictions set forth herein and notice of such
gift is given to the Representatives.
If for any reason both the Underwriting Agreement and SynDECS Underwriting
Agreement shall be terminated prior to the Closing Date (as defined in the
Underwriting Agreement), the agreement set forth above shall likewise be
terminated.
Yours very truly,
[Signature of executive officer or director]
[Name and address of executive officer
or director]
2
EXECUTION COPY
CITIGROUP GLOBAL MARKETS HOLDINGS INC.
7,200,000 SYNDECSSM (Debt Exchangeable for Common StockSM)*
Variable Rate Exchangeable Notes Due July 1, 2006
(Subject to Exchange into Shares of Common
Stock, par value $.01 per share, of Regency Centers Corporation)
Underwriting Agreement
New York, New York
June 18, 2003
CITIGROUP GLOBAL MARKETS INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED As Representatives of the
several Underwriters, c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Citigroup Global Markets Holdings Inc., a New York corporation
("Holdings"), proposes to issue and to sell to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom you (the "Representatives") are
acting as representatives, an aggregate of 7,200,000 SynDECS (Debt Exchangeable
for Common Stock) consisting of $234,432,000 aggregate principal amount of its
Variable Rate Exchangeable Notes Due July 1, 2006 (the "Underwritten SynDECS"),
to be issued under an indenture (the "Indenture") dated as of October 27, 1993
between Holdings and The Bank of New York, as trustee (the "Trustee"), as
amended to the date hereof. In addition, the Underwriters will have an option to
purchase up to 1,080,000 SynDECS (with an aggregate principal amount of up to
$35,164,800) (the "Option SynDECS" and, together with the Underwritten SynDECS,
the "SynDECS") to cover over-allotments, if any. At maturity (including as a
result of acceleration or otherwise), the SynDECS will be mandatorily exchanged
by Holdings into shares of Common Stock, par value $.01 per share (the "Regency
Common Stock"), of Regency Centers Corporation, a Florida corporation (the
"Company"), at the rate specified in the Holding Prospectus Supplement (as
defined below), or the cash equivalent of those shares, or a combination of cash
and shares. The Company is a general partner of Regency Centers, L.P., a
Delaware limited partnership (the "Partnership").
- ------------------
* Plus an option to purchase from Holdings up to 1,080,000 additional SynDECS
to cover over-allotments.
Security Capital Group Incorporated, a Maryland corporation (the "Selling
Stockholder"), through its subsidiary Security Capital Shopping Mall Business
Trust (the "Trust"), has entered into a Master Terms and Conditions for Forward
Transactions individually with each of Citibank, N.A., an affiliate of Holdings,
and UBS AG, London Branch (each, a "Forward Counterparty"), each dated as of
even date herewith (each, a "Forward Agreement"), and will enter into a
Confirmation pursuant to each such Forward Agreement substantially in the form
of Exhibit A to such Forward Agreement (each, a "Confirm"), pursuant to which
the Trust will agree to sell, and the Forward Counterparties will agree to
purchase, the number of shares (the "Regency Shares") of Regency Common Stock
specified therein on the dates specified therein (the "Exchange Dates") in
accordance with the terms thereof. The Forward Agreements (together with the
related Confirms) may be settled in cash at the option of the Trust on the terms
set forth therein. In addition, UBS AG, London Branch has entered into a Master
Terms and Conditions for Forward Transactions with Citibank, N.A., dated as of
even date herewith (the "UBS Agreement"), and will enter into a Confirmation
pursuant to such UBS Agreement (the "UBS Confirm"), which will be settled either
in cash (for the value of the shares that UBS AG, London Branch is entitled to
receive from the Trust) or by delivery of such shares subject to certain
conditions on the dates specified therein in accordance with the terms thereof.
The Forward Agreements, the Confirms and the UBS Agreement are together referred
to herein as the "Forward Arrangements". The Selling Stockholder, through the
Trust, has also entered into forward purchase agreements individually (the
"Concurrent Forward Agreements") with each of Merrill Lynch International, with
Merrill Lynch, Pierce, Fenner & Smith Incorporated acting as agent, JPMorgan
Chase Bank, with J.P. Morgan Securities Inc. acting as agent, and Wachovia Bank,
National Association, with Wachovia Securities, LLC acting as agent
(collectively, the "Concurrent Forward Counterparties"), dated as of even date
herewith, pursuant to which the Trust has agreed to sell, and the Concurrent
Forward Counterparties have agreed to purchase, the number of shares (the
"Concurrent Regency Shares") of Regency Common Stock specified therein on the
dates specified therein (the "Concurrent Exchange Dates") in accordance with the
terms thereof. The Selling Stockholder also has entered into related stock
lending arrangements with the Concurrent Forward Counterparties or affiliates
thereof (the "Concurrent Stock Loan Agreement" and, together with the Concurrent
Forward Agreements, the "Concurrent Forward Arrangements").
General Electric Capital Corporation, an affiliate of the Selling
Stockholder ("GECC"), has agreed to guarantee the obligations of the Selling
Stockholder and the Trust under this Agreement (the "GE UA Guarantee") and the
Forward Agreements (together with the GE UA Guarantee, the "GE Guarantees"),
respectively.
The Company has filed with the Commission a shelf registration statement,
including a prospectus, for a total 34,273,236 shares of Regency Common Stock,
pursuant to which the Trust and its transferees may offer and sell the Regency
Shares.
Any reference herein to the Holdings Registration Statement, the Holdings
Prospectus, any Holdings Preliminary Prospectus Supplement, the Holdings
Prospectus Supplement, the Company Registration Statement, the Company
Prospectus, any Company Preliminary Prospectus Supplement or the Company
Prospectus Supplement (each, as defined below) shall be deemed to refer to and
include the documents incorporated by reference therein
2
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Holdings Registration Statement or Company
Registration Statement, as the case may be, or the issue date of the Holdings
Prospectus, any Holdings Preliminary Prospectus Supplement, the Holdings
Prospectus Supplement, the Company Prospectus, any Company Preliminary
Prospectus Supplement or the Company Prospectus Supplement, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Holdings Registration Statement, the Holdings Prospectus, any
Holdings Preliminary Prospectus Supplement, the Holdings Prospectus Supplement,
the Company Registration Statement, the Company Prospectus, any Company
Preliminary Prospectus Supplement or the Company Prospectus Supplement shall be
deemed to refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Holdings Registration Statement or Company
Registration Statement, as the case may be, or the issue date of the Holdings
Prospectus, any Holdings Preliminary Prospectus Supplement, the Holdings
Prospectus Supplement, the Company Prospectus, any Company Preliminary
Prospectus Supplement or the Company Prospectus Supplement, as the case may be,
deemed to be incorporated therein by reference.
To the extent there are no additional Underwriters listed on Schedule I
other than you, the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall mean either
the singular or plural as the context requires. The use of the neuter in this
Agreement shall include the feminine and masculine wherever appropriate. Certain
terms used herein are defined in Section 22 hereof.
1. Representations and Warranties of Holdings. Holdings represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) A registration statement on Form S-3 (File No. 333-55650),
including a related prospectus, relating to the SynDECS has been prepared
by Holdings in conformity in all material respects with the requirements of
the Act and the Trust Indenture Act, and the Rules and Regulations of the
Commission thereunder, and has been filed with the Commission and has
become effective. Such registration statement and prospectus may have been
amended or supplemented from time to time prior to the date of this
Agreement; any such amendment to the Registration Statement was so prepared
and filed and any such amendment has become effective. A preliminary
prospectus supplement (the "Holdings Preliminary Prospectus Supplement")
and a final prospectus supplement (the "Holdings Prospectus Supplement"),
including a prospectus, relating to the SynDECS has been or will be so
prepared and has been or will be filed pursuant to Rule 424 under the Act.
Copies of such registration statement and prospectus, any Holdings
Preliminary Prospectus Supplement and the Holdings Prospectus Supplement,
including in each case any amendment or supplement, and all documents
incorporated by reference therein which were filed with the Commission on
or prior to the date hereof have been delivered to you.
(b) The Holdings Registration Statement, at the time it became
effective, any post-effective amendment thereto, at the time it became
effective, the Holdings Registration Statement and the Holdings Prospectus,
as of the date hereof and at the Closing Date (as defined in Section 3
hereof), and any amendment or supplement thereto,
3
conformed or will conform in all material respects to the requirements of
the Act, the Trust Indenture Act and the Rules and Regulations; and no such
document included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; except that the
foregoing shall not apply to (i) statements in or omissions from any such
document in reliance upon, and in conformity with, written information
furnished to Holdings by or on behalf of any Underwriter through you,
specifically for use in the preparation thereof or (ii) that part of the
Registration Statement which shall constitute the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of the Trustee.
(c) The documents incorporated by reference in the Holdings
Registration Statement or the Holdings Prospectus, when they became
effective or were filed with the Commission, as the case may be, under the
Exchange Act, conformed, and any documents so filed and incorporated by
reference after the date hereof will, when they are filed with the
Commission, conform, in all material respects to the requirements of the
Act and the Exchange Act, as applicable, and the Rules and Regulations
thereunder.
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with each Underwriter as set forth below in this
Section 2.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement
(file number 333-105408) on Form S-3, including a related preliminary
prospectus, for registration under the Act of the offering and sale of the
Regency Common Stock. The Company may have filed one or more amendments
thereto, including a related preliminary prospectus, each of which has
previously been furnished to you. The Company will next file with the
Commission one of the following: either (1) prior to the Effective Date of
such registration statement, a further amendment to such registration
statement (including the form of final prospectus) or (2) after the
Effective Date of such registration statement, a final prospectus in
accordance with Rules 430A and 424(b). In the case of clause (2), the
Company has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information) required
by the Act and the rules thereunder to be included in such registration
statement and the Company Prospectus as of the Effective Date. As filed,
such amendment and form of final prospectus, or such final prospectus,
shall contain all Rule 430A Information, together with all other such
required information, and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all substantive respects in
the form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Company Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein (excluding
Exchange Act filings incorporated therein by reference).
(b) On the Effective Date, the Company Registration Statement (and any
amendment or supplement thereto) did or will, and when the Company
Prospectus is first
4
filed (if required) in accordance with Rule 424(b) and on the Closing Date
(as defined herein), the Company Prospectus (and any amendments or
supplements thereto) will, comply in all material respects with the
applicable requirements of the Act and the Exchange Act and the respective
rules thereunder; on the Effective Date and at the Execution Time, the
Company Registration Statement (and any amendment or supplement thereto)
did not or will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, on the Effective
Date, the Company Prospectus, if not filed pursuant to Rule 424(b), will
not, and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Company Prospectus (together with any amendment or
supplement thereto) will not, include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties in this paragraph (b) as to the information
contained in or omitted from the Company Registration Statement or the
Company Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with the Selling Stockholder Information (as defined
herein) or other information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion in the Company Registration Statement or the Company Prospectus
(or any amendment or supplement thereto); and no order preventing or
suspending the use of the Company Registration Statement has been issued by
the Commission;
(c) The documents incorporated by reference in the Company Prospectus,
when they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the Rules and Regulations
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Company
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the Rules and Regulations
thereunder and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with the Selling Stockholder
Information or other information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use in the Company
Prospectus as amended or supplemented;
(d) Neither the Company nor any of its subsidiaries, including the
Partnership, has sustained since the date of the latest audited financial
statements included or incorporated by reference in the Company Prospectus
any material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
5
otherwise than as set forth or contemplated in the Company Prospectus, as
amended or supplemented; and, since the respective dates as of which
information is given in the Company Registration Statement and the Company
Prospectus, there has not been any change in the capital stock or
partnership interests of the Company or any of its subsidiaries (including
the Partnership) (other than issuances of capital stock or partnership
interests in connection with employee benefit plans, dividend reinvestment
plans, the exercise of options, the exchange of Partnership units and the
payment of earn-outs pursuant to contractual commitments) or in the
partners' capital of the Partnership or any of its subsidiaries, any change
in mortgage loans payable or long-term debt of the Company or any of its
subsidiaries (including the Partnership) in excess of $20,000,000 or in the
mortgage loans payable or long-term debt of the Partnership or any of its
subsidiaries or any material adverse change in excess of $20,000,000, or
any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity, partners' capital or results of operations of the
Company and its subsidiaries (including the Partnership), otherwise than as
set forth or contemplated in the Company Prospectus;
(e) The Company and its subsidiaries (including the Partnership) have
good and marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case free
and clear of all liens, encumbrances and defects except such as are
described in the Company Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries (including
the Partnership); and any real property and buildings held under lease by
the Company and its subsidiaries (including the Partnership) are held by
them under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its subsidiaries
(including the Partnership);
(f) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Florida, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Company Prospectus, as amended or
supplemented, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no material
liability or disability by reason of the failure to be so qualified in any
such jurisdiction; the Partnership has been duly organized and is validly
existing in good standing under the laws of the State of Delaware, with
power and authority to own its properties and conduct its business as
described in the Company Prospectus, as amended or supplemented, and has
been duly qualified as a foreign partnership for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; and each subsidiary of the Company has been duly incorporated
or organized
6
and is validly existing as a corporation or other entity in good standing
under the laws of its jurisdiction of incorporation or organization;
(g) All of the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and non
assessable; the capital stock of the Company conforms in all material
respects to the description thereof in the Company Prospectus as amended or
supplemented; and, except as set forth on Exhibit A, all of the issued
shares of capital stock or other equity interests of each subsidiary of the
Company have been duly and validly authorized and issued, are fully paid
and non assessable and (except as set forth on Exhibit A and directors'
qualifying shares) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims; all of the issued
partnership interests of the Partnership have been duly and validly
authorized and issued and are fully paid and non assessable;
(h) The Regency Shares have been duly and validly authorized and
issued and are fully paid and non-assessable; and the Regency Shares
conform to the description thereof contained in the Company Registration
Statement and the Company Prospectus as amended or supplemented;
(i) This Agreement has been duly authorized, executed and delivered by
the Company;
(j) None of the transactions contemplated by this Agreement (excluding
the Forward Arrangements, any Regency Shares loaned to the Forward
Counterparties in connection with the Forward Arrangements, and the GE
Guarantees) will violate or result in a violation of Section 7 of the
Exchange Act, or any regulation promulgated thereunder, including, without
limitation, Regulations T, U, and X of the Board of Governors of the
Federal Reserve System;
(k) Prior to the date hereof, neither the Company nor any of its
affiliates (including the Partnership) has taken any action which is
designed to or which has constituted or which might have been expected to
cause or result in stabilization or manipulation of the price of any
security of the Company in connection with the offering of the Regency
Common Stock or the SynDECS;
(l) The execution and delivery by the Company of this Agreement, its
compliance with all of the provisions hereof and the consummation of the
transactions by the Company contemplated herein and, to its knowledge, the
consummation of the transactions by the parties other than the Company
contemplated herein (including the Forward Arrangements) will not conflict
with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, (i) any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company
or any of its subsidiaries (including the Partnership) is a party or by
which the Company or any of its subsidiaries (including the Partnership) is
bound or to which any of the property or assets of the Company or any of
its subsidiaries (including the Partnership) is subject; (ii) the
provisions of the Articles of Incorporation (other than Sections 5.2(a),
(b), (c) and (f)
7
of the Articles of Incorporation to the extent addressed by paragraphs (u)
and (v) below) or By-laws of the Company, the Certificate of Limited
Partnership or partnership agreement of the Partnership or (iii) any
statute or any order, rule or regulation of any court or governmental
agency or body known to have jurisdiction over the Company or any of its
subsidiaries (including the Partnership) or any of their properties other
than, in the case of clauses (i) and (iii), such breaches or violations
which, if determined adversely to the Company, would not reasonably be
expected to have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole or on the
consummation of the transactions contemplated herein; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this
Agreement, except (1) such as have been, or will have been prior to the
Closing Date, obtained under the Act, (2) such as may be required to be
obtained by the Company, Holdings or the Underwriters under the rules of
the National Association of Securities Dealers, Inc. or the New York Stock
Exchange, and (3) such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and sale of the SynDECS by the
Underwriters or the delivery of the Regency Shares pursuant to the terms of
the Forward Arrangements and the SynDECS;
(m) Neither the Company nor any of its subsidiaries (including the
Partnership) is in violation of its Articles of Incorporation, By-laws,
Certificate of Limited Partnership or partnership agreement or in default
in the performance or observance of any material obligation, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or
by which it or any of its properties may be bound;
(n) The statements set forth in the Company Registration Statement and
the Company Prospectus as amended or supplemented under the captions
"Description of the Capital Stock", "Federal Income Tax Considerations" and
"Plan of Distribution" (other than the Selling Stockholder Information) and
the statements set forth in the Company Prospectus Supplement under the
caption "Underwriting" (other than the Selling Stockholder Information and
other information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives) are, insofar as such
statements constitute a summary of the terms of the Regency Common Stock
and the laws and documents referred to therein, accurate and complete in
all material respects;
(o) Other than as set forth in the Company Prospectus, as amended or
supplemented, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries (including the Partnership) is
a party or of which any property of the Company or any of its subsidiaries
(including the Partnership) is the subject which, if determined adversely
to the Company or any of its subsidiaries (including the Partnership),
would individually or in the aggregate have a material adverse effect on
the current or future financial position, stockholders' equity, partners'
capital or results of operations of the Company and its subsidiaries
(including the
8
Partnership); and, to the best of the Company's knowledge and the
Partnership's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(p) The Company has qualified to be taxed as a real estate investment
trust pursuant to Sections 856 through 860 of the Code, for each of the
fiscal years from its inception through the most recently completed fiscal
year and the Company's present and contemplated organization, ownership,
method of operation, assets and income, taking into account the SynDECS,
the Forward Arrangements, the Regency Shares loaned to the Forward
Counterparties in connection with the Forward Arrangements and the
Concurrent Forward Arrangements, are such that the Company is in a position
under present law to so qualify for the current fiscal year and in the
future;
(q) Neither the Company nor the Partnership has knowledge of (a) the
presence of any hazardous substances, hazardous materials, toxic substances
or waste materials (collectively, "Hazardous Materials") on any of the
properties owned by it in violation of law or in excess of regulatory
action levels or (b) any unlawful spills, releases, discharges or disposal
of Hazardous Materials that have occurred or are presently occurring on or
off such properties as a result of any construction on or operation and use
of such properties, which presence or occurrence would materially adversely
affect the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company or the Partnership; and in
connection with the construction on or operation and use of the properties
owned by the Company and the Partnership, neither has any knowledge of any
material failure to comply with all applicable local, state and federal
environmental laws, regulations, agency requirements, ordinances and
administrative and judicial orders;
(r) Neither the Company nor the Partnership is, and after giving
effect to the issuance of the SynDECS and the delivery of the Regency
Shares pursuant to the terms of the Forward Arrangements and the SynDECS,
will be an "investment company", or an entity "controlled" by an
"investment company", as such terms are defined in the Investment Company
Act; and
(s) KPMG LLP, who have certified certain financial statements of the
Company and its subsidiaries and the Partnership and its subsidiaries, are
independent public accountants as required by the Act and the Rules and
Regulations thereunder.
(t) The various actions of the Company's Board of Directors waiving
the Ownership Limit (as defined by the Company's Articles of Incorporation)
for the Selling Stockholder and the Forward Arrangements, as set forth in
the resolutions adopted June 11, 2003 (together, the "Board Action"), were
duly authorized, are legal, valid and binding on the Company and remain in
full force and effect as of the date hereof;
(u) The Forward Agreements and the Confirms (i) will not result in a
violation by the Forward Counterparties and their affiliates of the 7%
Ownership Limit for the number of Regency Shares that are the subject of
the Forward Agreements and the Confirms (including, for this purpose,
Regency Shares loaned to the Forward Counterparties in
9
connection with the Forward Agreements and the Confirms), other than
Regency Shares, if any, constituting more than 9.8% by value of the
Company's outstanding capital stock (after giving effect to any Regency
Common Stock repurchased by the Company pursuant to the purchase and sale
agreement between the Company and the Selling Stockholder with respect to
$150,000,000 of Regency Common Stock) during the applicable term of the
Forward Agreements and the Confirms and, if applicable, during the term of
the SynDECS and for a period of 90 days thereafter; provided that no Person
(as defined in the Company's Articles of Incorporation) who is an
individual as defined in section 542(a)(2) of the Code (as modified by
section 856(h) of the Code) becomes the Beneficial Owner (as defined in the
Company's Articles of Incorporation) of more than 9.8% by value of the
Company's capital stock solely by reason of directly or indirectly
acquiring ownership of capital stock of the applicable Forward Counterparty
(disregarding any shares of the Company's capital stock other than those
owned by the applicable Forward Counterparty and its subsidiaries); and
provided, further, that the percentage limits referred to herein shall be
adjusted upward appropriately in the event of any repurchases of Regency
Common Stock by the Company other than repurchases pursuant to the purchase
and sale agreement between the Company and the Selling Stockholder referred
to herein; and (ii) will not result in a violation by the Forward
Counterparties and their affiliates of the Related Tenant Limit (as defined
by the Company's Articles of Incorporation) for the number of Regency
Shares that are the subject of the Forward Agreements and the Confirms
(including, for this purpose, Regency Shares loaned to the Forward
Counterparties in connection with the Forward Agreements and the Confirms),
unless and except to the extent that (1) a Forward Counterparty and its
affiliates directly own or Constructively Own (as defined by the Company's
Articles of Incorporation, but without regard to the Forward Agreements,
the Confirms, the UBS Agreement and the UBS Confirm) Regency Shares that
constitute more than 9.8% by value of the Company's outstanding capital
stock (after giving effect to any Regency Common Stock repurchased by the
Company pursuant to the purchase and sale agreement referred to herein)
less the number of Regency Shares subject to the Forward Agreements and the
Confirms entered into by such Forward Counterparty and its affiliates
during the applicable term of the Forward Agreements and the Confirms and,
if applicable, during the term of the SynDECS and for a period of 90 days
thereafter, or (2) the Regency Shares subject to the Forward Agreements and
the Confirms entered into by a Forward Counterparty and its affiliates
during the applicable term of the Forward Agreements and the Confirms and,
if applicable, during the term of the SynDECS and for a period of 90 days
thereafter exceeds 9.8% by value of the Company's outstanding capital stock
(after giving effect to any Regency Common Stock repurchased by the Company
pursuant to the purchase and sale agreement referred to herein).
(v) The UBS Agreement will not cause Holdings and its affiliates to be
considered as owning shares of Regency Common Stock in excess of the
Related Tenant Limit (as defined in the Company's Articles of
Incorporation) for purposes of the limitations set forth in Sections 5.2(b)
and 5.2(f) of the Company's Articles of Incorporation or to own the shares
of Regency Common Stock covered by the UBS Agreement for purposes of the 7%
Ownership Limit.
10
(w) Holdings and its affiliates will not be considered as owning
shares of Regency Common Stock that Holdings has delivered to holders of
the SynDECS (other than Holdings and its affiliates) or to the Trustee on
such holders' behalf for purposes of the 7% Ownership Limit or the Related
Tenant Limit (as defined by the Company's Articles of Incorporation).
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the SynDECS shall be deemed a representation and warranty by the Company as
to matters covered thereby, to each Underwriter.
3. Representations and Warranties of the Selling Stockholder. The Selling
Stockholder represents and warrants to, and agrees with, each Underwriter that:
(a) The Selling Stockholder, through the Trust, has a security
entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to the
Regency Shares to be delivered by it under the Forward Agreements and the
Confirms maintained in a securities account on the books of UBS Financial
Services Inc. free and clear of all liens, encumbrances, equities and
claims, and upon payment for the Regency Shares as provided in the
applicable Forward Agreement and Confirm, and the crediting of such Regency
Shares on the books of The Depository Trust Company to the securities
accounts (within the meaning of Section 8-501 of the UCC) of the various
Forward Counterparties (assuming that each of the Forward Counterparties
lacks notice of any "adverse claim" (within the meaning of Section 8-102 of
the UCC) to the Regency Shares), (A) each of the Forward Counterparties
will acquire valid "security entitlements" in respect of the Regency Shares
purchased by such Forward Counterparty (within the meaning of Section 8-102
of the UCC) and (B) no action based on any "adverse claim" (within the
meaning of Section 8-102 of the UCC) to the Regency Shares, whether framed
in conversion, replevin, constructive trust, equitable lien or other
theory, may be asserted against such Forward Counterparty with respect to
such security entitlements;
(b) Each of this Agreement, the Forward Agreements and the Confirms
has been duly authorized by the Selling Stockholder or the Trust, as the
case may be; each of this Agreement and the Forward Agreements has been
duly executed and delivered by the Selling Stockholder or the Trust, as the
case may be; assuming due authorization, execution and delivery by the
other parties thereto, each of the Forward Agreements constitutes and, upon
execution and delivery of the Confirms by the Trust, each of the Confirms
will constitute, a valid and legally binding agreement of the Trust
enforceable against the Trust in accordance with its respective terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(c) Neither the Selling Stockholder nor the Trust has taken, directly
or indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange Act
or otherwise, stabilization or manipulation of
11
the price of any security of the Company to facilitate the sale or resale
of the Regency Common Stock or the SynDECS;
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the Selling
Stockholder or the Trust of the transactions contemplated herein or in the
Forward Arrangements, except (1) such as may have been obtained under the
Act, (2) such as may be required to be obtained by the Company, Holdings or
the Underwriters under the rules of the National Association of Securities
Dealers, Inc. or the New York Stock Exchange, and (3) such as may be
required under federal securities laws or state securities or Blue Sky laws
in connection with the purchase and sale of the SynDECS by the Underwriters
or the delivery of the Regency Shares pursuant to the terms of the Forward
Arrangements and the SynDECS and such other approvals as have been
obtained;
(e) The delivery of the Regency Shares pursuant to the terms of the
Forward Arrangements and the consummation of any other of the transactions
herein and therein contemplated by the Selling Stockholder and the Trust,
as the case may be, and the performance by the Selling Stockholder and the
Trust, as the case may be, of their obligations hereunder and thereunder
will not conflict with, result in a breach or violation of, or constitute a
default under (i) any law applicable to the Selling Stockholder, the (ii)
charter or by-laws of the Selling Stockholder or the Trust or (iii) the
terms of any indenture or other agreement or instrument to which the
Selling Stockholder or any of its subsidiaries is a party or bound, or any
judgment, order or decree applicable to the Selling Stockholder or any of
its subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Selling
Stockholder or any of its subsidiaries, other than, in the case of clauses
(i) and (iii), such conflicts, breaches, violations or defaults which, if
determined adversely to the Selling Stockholder, would not reasonably be
expected to have a material adverse effect on the consummation of the
transactions contemplated hereby and by the Forward Arrangements;
(f) In respect of any statements in or omissions from the Company
Registration Statement or the Company Prospectus or any amendments or
supplements thereto made in reliance upon and in conformity with the
Selling Stockholder Information, the Selling Stockholder hereby makes the
same representations and warranties to each Underwriter as the Company
makes to such Underwriter under Section 2(b) (excluding any proviso);
(g) The execution and delivery of the Forward Agreements do not, and
the execution and delivery of the Stock Loan Agreement (as defined herein)
and the performance of the Forward Agreements and the Stock Loan Agreement
by the parties thereto in accordance with their respective terms will not,
violate Section 7 of the Exchange Act or Regulations T, U or X of the Board
of Governors of the Federal Reserve System; and
(h) The statements constituting Selling Stockholder Information set
forth in the Company Registration Statement and the Company Prospectus
under the caption "Plan of Distribution" and in the Holdings Registration
Statement and Holdings Prospectus under
12
the captions "Relationship among Citigroup, Regency and the Selling
Shareholder" and "Underwriting" are, insofar as the statements constitute a
summary of the documents referred to therein, accurate and complete in all
material respects.
Any certificate signed by any officer of the Selling Stockholder and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the SynDECS shall be deemed a representation and warranty
by the Selling Stockholder, as to matters covered thereby, to each Underwriter.
4. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, Holdings agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly,
to purchase from Holdings, at a purchase price of $32.560 per SynDECS with
a principal amount of $32.560, the amount of the Underwritten SynDECS set
forth opposite such Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, Holdings hereby grants an
option to the several Underwriters to purchase, severally and not jointly,
up to 1,080,000 Option SynDECS with an aggregate principal amount of
$35,164,800 at the same purchase price per SynDECS as the Underwriters
shall pay for the Underwritten SynDECS. The option may be exercised only to
cover over-allotments in the sale of the Underwritten SynDECS by the
Underwriters. The option may be exercised in whole or in part at any time
(but not more than once) on or before the 30th day after the date of the
Holdings Prospectus Supplement upon written or facsimile notice by the
Representatives to Holdings setting forth the number of Option SynDECS as
to which the several Underwriters are exercising the option and the
settlement date. The number of Option SynDECS to be purchased by each
Underwriter shall be the same percentage of the total number of Option
SynDECS to be purchased by the several Underwriters as such Underwriter is
purchasing of the Underwritten SynDECS, subject to such adjustments as you
in your absolute discretion shall make to eliminate any fractional SynDECS.
(c) As compensation to the Underwriters for their commitment
hereunder, and in view of the fact that the issuance of the SynDECS is
integrally related to the Selling Stockholder's sale of the Regency Shares,
the Selling Stockholder agrees to pay to the Underwriters, at the time of
each delivery of SynDECS pursuant to Section 5 hereof, an amount equal to
$0.9768 per DECS being delivered at such time.
5. Delivery and Payment. Delivery of and payment for the Underwritten
SynDECS and the Option SynDECS (if the option provided for in Section 4(b)
hereof shall have been exercised on or before the third Business Day prior to
the Closing Date) shall be made at 10:00 A.M., New York City time, on June 24,
2003 or at such time on such later date not later than three Business Days after
the foregoing date as the Representatives and Holdings shall determine, which
date and time may be postponed by agreement among the Representatives and
Holdings or as provided in Section 13 hereof (such date and time of delivery and
payment for the
13
SynDECS herein called the "Closing Date"). Delivery of the SynDECS shall be made
to the Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of the
purchase price thereof to or upon the order of Holdings by wire transfer payable
in immediately available funds to such accounts with such financial institutions
as Holdings may direct. Delivery of the SynDECS shall be made through the
facilities of the Depository Trust Company unless the Representatives shall
otherwise instruct.
If the option provided for in Section 4(b) hereof is exercised after the
third Business Day prior to the Closing Date, Holdings will deliver the Option
SynDECS (at the expense of Holdings) to the Representatives on the date
specified by the Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of Holdings
by wire transfer payable in immediately available funds to such accounts with
such financial institutions as Holdings may direct. If settlement for the Option
SynDECS occurs after the Closing Date, Holdings, the Company and the Selling
Stockholder will deliver to the Representatives on the settlement date for the
Option SynDECS, and the obligation of the Underwriters to purchase the Option
SynDECS shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 11 hereof.
6. Offering by the Underwriters. It is understood that the several
Underwriters propose to offer the SynDECS for sale to the public as set forth in
the Holdings Prospectus.
7. Agreements of Holdings. Holdings agrees with the several Underwriters
that:
(a) Holdings will cause any Holdings Preliminary Prospectus Supplement
and the Holdings Prospectus Supplement to be filed pursuant to Rule 424
under the Act and will notify you promptly of such filing. During the
period in which a prospectus relating to the SynDECS is required to be
delivered under the Act, Holdings will notify you promptly of the time when
any amendment to the Holdings Registration Statement has become effective
or any subsequent supplement to the Holdings Prospectus has been filed and
of any request by the Commission for any amendment of or supplement to the
Holdings Registration Statement or the Holdings Prospectus or for
additional information; it will prepare and file with the Commission,
promptly upon your request, any amendments or supplements to the Holdings
Registration Statement or Holdings Prospectus, which, in your opinion, may
be necessary or advisable in connection with the distribution of the
SynDECS by the Underwriters; it will file no amendment or supplement to the
Holdings Registration Statement or the Holdings Prospectus (other than any
prospectus supplement relating to the offering of securities other than the
SynDECS registered under the Holdings Registration Statement or any
document required to be filed under the Exchange Act which upon filing is
deemed to be incorporated by reference therein) to which you shall
reasonably object by notice to
14
Holdings after having been furnished a copy a reasonable time prior to the
filing; and it will furnish to you at or prior to the filing thereof a copy
of any such prospectus supplement or any document which upon filing is
deemed to be incorporated by reference in the Holdings Registration
Statement or Holdings Prospectus.
(b) Holdings will advise you, promptly after it shall receive notice
or obtain knowledge thereof, of the issuance by the Commission of any stop
order suspending the effectiveness of the Holdings Registration Statement,
of the suspension of the qualification of the SynDECS for offering or sale
in any jurisdiction, or of the initiation or threatening of any proceeding
for any such purpose; and it will promptly use its best efforts to prevent
the issuance of any stop order or to obtain its withdrawal if such a stop
order should be issued.
(c) Within the time during which a prospectus relating to the SynDECS
is required to be delivered under the Act, Holdings will comply with all
requirements imposed upon it by the Act, as now and hereafter amended, and
by the Rules and Regulations, as from time to time in force, so far as
necessary to permit the continuance of sales of or dealings in the SynDECS
as contemplated by the provisions hereof and the Holdings Prospectus. If
during such period any event occurs as a result of which the Holdings
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances then
existing, not misleading, or if during such period it is necessary to amend
or supplement the Holdings Registration Statement or the Holdings
Prospectus to comply with the Act, Holdings will promptly notify you and
you will amend or supplement the Holdings Registration Statement or the
Holdings Prospectus (at the expense of Holdings) so as to correct such
statement or omission or effect such compliance.
(d) Holdings will use its best efforts to qualify the SynDECS for sale
under the securities laws of such jurisdictions as you reasonably
designate, to maintain such qualifications in effect so long as required
for the distribution of the SynDECS and, if requested by the Underwriters,
to arrange for the determination of the legality of the SynDECS for
purchase by institutional investors, except that Holdings shall not be
required in connection therewith to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which
would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
(e) Holdings will furnish to the Underwriters copies of the Holdings
Registration Statement and the Holdings Prospectus (including all documents
incorporated by reference therein), and all amendments and supplements to
the Holdings Registration Statement or the Holdings Prospectus which are
filed with the Commission during the period in which a prospectus relating
to the SynDECS is required to be delivered under the Act (including all
documents filed with the Commission during such period which are deemed to
be incorporated by reference therein), in each case in such quantities as
you may from time to time reasonably request.
15
(f) So long as any of the SynDECS are outstanding, Holdings agrees to
furnish to you, upon your request (i) as soon as available, copies of all
reports to Holdings' security holders generally and (ii) all reports and
financial statements filed by or on behalf of Holdings with the Commission
or any national securities exchange.
(g) Holdings will make generally available to its security holders and
to you as soon as practicable, but in any event not later than 15 months
after the end of Holdings' current fiscal quarter, an earnings statement
(which need not be audited) covering a 12-month period beginning after the
date upon which the Holdings Prospectus Supplement is filed pursuant to
Rule 424 under the Act, which shall satisfy the provisions of Section 11(a)
of the Act.
(h) Holdings will use its best efforts to cause an application for the
listing of the SynDECS on the New York Stock Exchange and for the
registration of the SynDECS under the Exchange Act to become effective.
(i) Holdings will not, without the consent of Citigroup Global Markets
Inc., offer, sell, contract to offer or sell or otherwise dispose of any
securities, including any backup undertaking for such securities, of
Holdings, in each case that are substantially similar to the SynDECS or any
security convertible into or exchangeable for the SynDECS or such
substantially similar securities, during the period beginning the date
hereof and ending the Closing Date, provided however, that Holdings and its
affiliates may enter into hedging transactions relating to the SynDECS and
the residual share agreement relating to the SynDECS.
8. Agreements of the Company. The Company agrees with the several
Underwriters and the Selling Stockholder that:
(a) The Company will use its best efforts to cause the Company
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the SynDECS, the Company will not file any amendment of the
Company Registration Statement (excluding filings under the Exchange Act
incorporated by reference into the Company Registration Statement) or
amendment or supplement to the Company Prospectus or any Rule 462(b)
Company Registration Statement unless the Company has furnished you,
Holdings and the Selling Stockholder a copy for review prior to filing and
will not file any such proposed amendment or supplement to which you,
Holdings or the Selling Stockholder reasonably objects. Subject to the
foregoing sentence, if the Company Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Company
Prospectus is otherwise required under Rule 424(b), the Company will cause
the Company Prospectus, properly completed, and any amendment or supplement
thereto to be filed in a form approved by the Representatives, Holdings and
the Selling Stockholder with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Representatives, Holdings and the Selling
Stockholder of such timely filing. The Company will promptly advise the
Representatives, Holdings and the Selling Stockholder (1) when the Company
16
Registration Statement, if not effective at the Execution Time, shall have
become effective, (2) when the Company Prospectus, and any amendment or
supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b) or when any Rule 462(b) Company Registration
Statement shall have been filed with the Commission, (3) when, prior to
termination of the offering of the SynDECS, any amendment to the Company
Registration Statement shall have been filed or become effective, (4) of
any request by the Commission or its staff for any amendment of the Company
Registration Statement, or any Rule 462(b) Company Registration Statement,
or for any amendment or supplement to the Company Prospectus or for any
additional information, (5) of the issuance by the Commission of any stop
order suspending the effectiveness of the Company Registration Statement or
the institution or threatening of any proceeding for that purpose and (6)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Regency Common Stock for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Regency Shares
is required to be delivered under the Act, any event occurs as a result of
which the Company Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to
amend the Company Registration Statement or amend or supplement the Company
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will (1) notify the Representatives,
the Selling Stockholder and Holdings of such event, (2) prepare and file
with the Commission, subject to the second sentence of paragraph (a) of
this Section 8, an amendment or supplement which will correct such
statement or omission or effect such compliance and (3) supply any amended
or supplemented Company Prospectus to you in such quantities as you and
Holdings may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives, Holdings and the
Selling Stockholder and counsel for the Underwriters and Holdings, without
charge, signed copies of the Company Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the Company
Registration Statement (without exhibits thereto) and, so long as delivery
of a prospectus relating to the Regency Common Stock by an Underwriter or
dealer may be required by the Act, as many copies of each Company
Preliminary Prospectus and the Company Prospectus and any amendment or
supplement thereto as the Representatives may reasonably request.
17
(e) The Company will, if necessary, cooperate with Holdings for
purposes of the qualification of the SynDECS for sale under the laws of
such jurisdictions as the Representatives may designate and maintenance of
such qualifications in effect so long as required for the distribution of
the SynDECS and the Regency Shares, and the Company will arrange, if
necessary, for the qualification of the Regency Shares for sale under the
laws of such jurisdictions as the Representatives may designate, and will
maintain such qualifications in effect so long as required for the
distribution of the SynDECS and the Regency Shares; provided, that in no
event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising
out of the offering or sale of the Regency Common Stock as contemplated by
the Company Prospectus, in any jurisdiction where it is not now so subject.
(f) The Company will not, and will use its good faith efforts to cause
any other holder of Common Stock not to, without the prior written consent
of the Representatives, offer, sell, contract to sell, pledge, or otherwise
dispose of (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any subsidiary of the Company or any person in
privity with the Company or any subsidiary of the Company), directly or
indirectly, including under any registration statement filed with the
Commission or prospectus supplement relating to an existing shelf
registration statement filed with the Commission (other than pursuant to
registration statements in effect on the date hereof for the benefit of
selling stockholders thereunder), any other shares of Regency Common Stock
or any securities convertible into, or exercisable, or exchangeable for,
shares of Regency Common Stock, or publicly announce an intention to effect
any such transaction, for a period of 90 days after the date of the
Underwriting Agreement except, in each case, in connection with (i) the
offering of the SynDECS pursuant to the terms of this Agreement, (ii) the
Forward Arrangements, the delivery of the Regency Common Stock pursuant to
the terms of such arrangements and the SynDECS and any related stock
lending arrangements, (iii) the concurrent offering of Regency Common Stock
by the Selling Stockholder and (iv) the Concurrent Forward Arrangements;
provided, however, that the Company may issue or sell Regency Common Stock
(A) pursuant to any employee stock option plan, stock ownership plan or
dividend reinvestment plan of the Company in effect at the Execution Time,
(B) upon the conversion of securities or the exercise of warrants
outstanding at the Execution Time and (C) upon the redemption of limited
partnership units of any subsidiary of the Company outstanding at the
Execution Time.
(g) The Company will comply with all applicable securities and other
applicable laws, rules and regulations, including, without limitation, the
Sarbanes Oxley Act, and to use its reasonable best efforts to cause the
Company's directors and officers, in their capacities as such, to comply
with such laws, rules and regulations, including, without limitation, the
provisions of the Sarbanes Oxley Act.
(h) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the
18
Exchange Act or otherwise, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Regency
Common Stock or the SynDECS.
9. Agreements of the Selling Stockholder. The Selling Stockholder agrees
with the several Underwriters and the Company that:
(a) The Selling Stockholder will not, without the prior written
consent of the Representatives, offer, sell, contract to sell, pledge, or
otherwise dispose of, or enter into any transaction which is designed to,
or might reasonably be expected to, result in the disposition of (whether
by actual disposition or effective economic disposition due to cash
settlement or otherwise), directly or indirectly, any other shares of
Regency Common Stock or any securities convertible into, or exercisable, or
exchangeable for, shares of Regency Common Stock by the Selling Stockholder
or any subsidiary of the Selling Stockholder or any person in privity of
contract pursuant to a contract relating to the disposition of such shares
or securities or transactions which are designed to, or might reasonably be
expected to, result in the disposition of such shares or securities with
the Selling Stockholder or any subsidiary of the Selling Stockholder,
including the filing (or participation in the filing) of a registration
statement with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act, or publicly announce
an intention to effect any such transaction, for a period of 90 days after
the date of this Agreement, other than shares of Regency Common Stock
disposed of as bona fide gifts approved by the Representatives and except,
in each case, in connection with (i) the offering of the SynDECS pursuant
to the terms of this Agreement, (ii) the Forward Arrangements, the delivery
of the Regency Common Stock pursuant to the terms of such arrangements and
the SynDECS and any related stock lending arrangements, (iii) the
concurrent offering of Regency Common Stock by the Selling Stockholder and
(iv) the Concurrent Forward Arrangements.
(b) The Selling Stockholder will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Regency Common Stock or the
SynDECS.
(c) The Selling Stockholder will advise the Representatives and
Holdings promptly, and if requested by you or Holdings, will confirm such
advice in writing, so long as delivery of a prospectus relating to the
Regency Common Stock (including in connection with the offering and sale of
the SynDECS) by an underwriter or dealer may be required under the Act, of
(i) any change in information in the Company Registration Statement or the
Company Prospectus relating to the Selling Stockholder or (ii) any new
material information relating to the Company or relating to any matter
stated in the Company Prospectus which comes to the attention of the
Selling Stockholder.
19
10. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwritten SynDECS and the Option SynDECS, as
the case may be, shall be subject to the accuracy of the representations and
warranties on the part of Holdings, the Company and the Selling Stockholder
contained herein as of the Execution Time, the Closing Date and any settlement
date pursuant to Section 4(b) hereof, to the accuracy of the statements of
Holdings, the Company and the Selling Stockholder made in any certificates
pursuant to the provisions hereof, to the performance by Holdings, the Company
and the Selling Stockholder of their respective obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the Holdings
Registration Statement shall have been issued and no proceeding for that
purpose shall have been instituted or, to the knowledge of Holdings or any
Underwriter, threatened by the Commission, and any request of the
Commission for additional information (to be included in the Holdings
Registration Statement or the Holdings Prospectus or otherwise) shall have
been complied with to the Underwriters' satisfaction.
(b) Holdings shall have furnished to the Representatives the opinion
of Richard Ketchum, General Counsel of Holdings, dated the Closing Date to
the effect that:
(i) Holdings has been duly incorporated and is an existing
corporation in good standing under the laws of the State of New York,
with corporate power and authority to own its properties and conduct
its business as described in the Holdings Prospectus, as amended or
supplemented;
(ii) Holdings is duly qualified to do business as a foreign
corporation in good standing in all jurisdictions in which it owns or
leases substantial properties or in which the conduct of its business
requires such qualification and the failure so to qualify would have a
material adverse effect on Holdings;
(iii) The Indenture has been duly authorized, executed and
delivered by Holdings, has been duly qualified under the Trust
Indenture Act and constitutes a legal, valid and binding instrument
enforceable against Holdings in accordance with its terms (subject, as
to enforcement, to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws generally affecting creditors' rights
and to general principles of equity regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(iv) The SynDECS have been validly authorized and duly executed,
authenticated and delivered and constitute validly issued and
outstanding obligations of Holdings enforceable in accordance with
their terms and entitled to the benefits of the Indenture (subject, as
to enforcement, to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws generally affecting creditors' rights
and to general principles of equity regardless of whether such
enforceability is considered in a proceeding in equity or at law) and
conform in all material respects to the description thereof in the
Holdings Prospectus, as amended or supplemented;
20
(v) The Indenture conforms in all material respects to the
description thereof in the Holdings Prospectus, as amended or
supplemented;
(vi) This Agreement has been duly authorized, executed and
delivered by Holdings;
(vii) No consent, approval, authorization or order of any court
or governmental agency, authority or body is required for the
consummation by Holdings of the transactions contemplated herein or in
the Indenture, except (1) such as have been obtained under the Act and
the Trust Indenture Act, (2) such as may be required to be obtained by
the Company, Holdings or the Underwriters under the rules of the
National Association of Securities Dealers, Inc. or the New York Stock
Exchange, and (3) such as may be required under the securities or Blue
Sky laws of any jurisdiction in connection with the purchase and
distribution of the SynDECS by the Underwriters in the manner
contemplated in this Agreement or the distribution of the Regency
Shares pursuant to the terms of the Forward Agreements and the SynDECS
and such other approvals, if any (specified in such opinion), as have
been obtained;
(viii) The execution, delivery and performance of the Indenture
and this Agreement, and the issuance and sale of the SynDECS in
compliance with the terms and provisions thereof, will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under any statute, any rule, regulation or order
of any governmental agency or body or any court having jurisdiction
over Holdings or any material subsidiary of Holdings or any of their
properties or any agreement or instrument known to such counsel to
which Holdings or any such material subsidiary is a party or by which
Holdings or any such material subsidiary is bound or to which any of
the properties of Holdings or any such material subsidiary is subject,
or the charter or by-laws of Holdings or of any such material
subsidiary (except that such counsel need express no opinion with
respect to (1) the rights to indemnity and contribution contained in
this Agreement which may be limited by federal or state securities
laws or the public policy underlying such laws or (ii) any state
securities or blue sky laws);
(ix) There are no contracts, agreements or understandings known
to such counsel between Holdings and any person granting such person
the right to require Holdings to include any securities of Holdings
owned or to be owned by such person in the securities registered
pursuant to the Holdings Registration Statement; and
(x) The Holdings Registration Statement was declared effective
under the Act, and, to the best of the knowledge of such counsel, no
stop order suspending the effectiveness thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
have been communicated by the Commission to Holdings as being
contemplated by it under the Act; and the Holdings Registration
Statement, as of its Effective Date, the Holdings
21
Prospectus, as of the date of this Agreement and the Closing Date, and
any amendment or supplement thereto, as of its date, comply as to form
in all material respects with the requirements of the Act, the
Exchange Act and the Trust Indenture Act and the applicable Rules and
Regulations thereunder (except that such counsel need express no
opinion as to the financial statements or other data of a financial or
statistical nature or the Statements of Eligibility (Forms T-1) under
the Trust Indenture Act of the Trustee); such counsel has no reason to
believe that the Holdings Registration Statement, as of its Effective
Date, or the Holdings Prospectus, as of the date of this Agreement or
the Closing Date, or any such amendment or supplement, as of its date
and the Closing Date, contained any untrue statement of a material
fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading (except as
aforesaid); the descriptions in the Holdings Registration Statement
and Holdings Prospectus, each as amended or supplemented, of statutes,
legal and governmental proceedings and contracts and other documents
are accurate and fairly present the information required to be shown;
and such counsel does not know of any legal or governmental
proceedings required to be described in the Holdings Prospectus, as
amended or supplemented, which are not described as required or of any
contracts or documents of a character required to be described in the
Holdings Registration Statement or Holdings Prospectus, each as
amended or supplemented, or to be filed as exhibits to the Holdings
Registration Statement, as amended or supplemented, which are not
described and filed as required; it being understood that such counsel
need express no opinion as to the financial statements or other data
of a financial or statistical nature contained in the Holdings
Registration Statement or the Holdings Prospectus, each as amended or
supplemented;
(c) If the Company Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in writing to
a later time, such Company Registration Statement will become effective not
later than (i) 6:00 P.M. New York City time on the date of determination of
the public offering price of the SynDECS, if such determination occurred at
or prior to 3:00 P.M. New York City time on such date or (ii) 9:30 A.M. New
York City time on the Business Day following the day on which the public
offering price of the SynDECS was determined, if such determination
occurred after 3:00 P.M. New York City time on such date; if filing of the
Company Prospectus, or any amendment or supplement thereto, is required
pursuant to Rule 424(b), such Company Prospectus, and any such amendment or
supplement, will be filed in the manner and within the time period required
by such Rule; and no stop order suspending the effectiveness of the Company
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(d) The Company shall have requested and caused Foley & Lardner,
counsel for the Company, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
22
(i) each of the Company and its subsidiaries, including the
Partnership, has been duly incorporated and is validly existing as a
corporation or other organization in good standing under the laws of
the jurisdiction in which it is chartered or organized, with full
corporate power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as described in the
Company Prospectus, as amended or supplemented, and is duly qualified
to do business as a foreign corporation and is in good standing under
the laws of each jurisdiction which requires such qualification and is
subject to no material liability or disability by reason of the
failure to be so qualified in any jurisdiction;
(ii) all the outstanding shares of capital stock or partnership
interests of each subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and nonassessable, and,
except as otherwise set forth on Exhibit A or in the Company
Prospectus, as amended or supplemented, all outstanding shares of
capital stock or partnership interests of such subsidiaries are owned
by the Company either directly or through wholly owned subsidiaries
free and clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other security
interest, claim, lien or encumbrance;
(iii) the Company's authorized equity capitalization is as set
forth in the Company Prospectus; the capital stock of the Company
conforms in all material respects to the description thereof contained
in the Company Prospectus; the outstanding shares of Regency Common
Stock, including the Regency Shares, have been duly and validly
authorized and issued and are fully paid and nonassessable; the
Regency Shares are duly listed, and admitted and authorized for
trading on the New York Stock Exchange; other than the Selling
Stockholder, the holders of outstanding shares of capital stock of the
Company are not entitled to preemptive or other rights to subscribe
for the Regency Shares arising by operation of law or the Company's
Articles of Incorporation or By-laws, or, to the knowledge of such
counsel, under any agreement by which the Company is bound; and,
except as set forth in the Company Prospectus, as amended or
supplemented, to the knowledge of such counsel, no options, warrants
or other rights to purchase, agreements or other obligations to issue,
or rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the Company
are outstanding;
(iv) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property of a
character required to be disclosed in the Company Registration
Statement which is not adequately disclosed in the Company Prospectus,
and there is no franchise, contract or other document relating to the
Company or its subsidiaries of a character required to be described in
the Company Registration Statement or Company Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as
required; and the statements
23
included or incorporated by reference in the Company Prospectus under
the headings "Description of Capital Stock", insofar as they purport
to constitute a summary of the terms of the Regency Common Stock, and
under the headings "Federal Income Tax Considerations" and "Plan of
Distribution" (other than the Selling Stockholder Information) insofar
as such statements summarize legal matters, agreements to which the
Company is a party , documents or proceedings discussed therein, are
accurate and fair summaries of such terms, legal matters, agreements,
documents or proceedings;
(v) the Company Registration Statement has become effective under
the Act; any required filing of the Company Prospectus, and any
amendments or supplements thereto, pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b);
to the knowledge of such counsel, no stop order suspending the
effectiveness of the Company Registration Statement has been issued,
no proceedings for that purpose have been instituted or threatened and
the Company Registration Statement and the Company Prospectus (other
than the financial statements and other financial and statistical
information contained therein, as to which such counsel need express
no opinion), each as amended or supplemented, comply as to form in all
material respects with the applicable requirements of the Act and the
Exchange Act and the respective rules thereunder; and, although such
counsel assumes no responsibility for the accuracy, completeness or
fairness of statements made therein except to the extent set forth in
paragraph (iv) above, such counsel has no reason to believe that on
the Effective Date or the date the Company Registration Statement was
last deemed amended the Company Registration Statement contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Company Prospectus as of its date
and on the Closing Date included or includes any untrue statement of a
material fact or omitted or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading (in each case, other than
the financial statements and other financial and statistical
information contained therein, as to which such counsel need express
no opinion);
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the Company is not, and after giving effect to the issuance
of the SynDECS and the delivery of the Regency Shares pursuant to the
terms of the Forward Arrangements and the SynDECS, will not be an
"investment company" as defined in the Investment Company Act of 1940,
as amended;
(viii) no consent, approval, authorization, filing with or order
of any court or governmental agency or body is required to be obtained
by the Company in connection with the consummation by the Company of
the transactions contemplated herein, except (1) such as have been
obtained under the Act,
24
(2) such as may be required to be obtained by the Company, Holdings or
the Underwriters under the rules of the National Association of
Securities Dealers, Inc. or the New York Stock Exchange, and (3) such
as be required under state securities or Blue Sky laws in connection
with the purchase and sale of the SynDECS by the Underwriters in the
manner contemplated in this Agreement or the delivery of the Regency
Shares pursuant to the terms of the Forward Arrangements and the
SynDECS and such other approvals (specified in such opinion) as have
been obtained;
(ix) the execution and delivery by the Company of this Agreement,
its compliance with all of the provisions hereof and the consummation
by the Company of the transactions contemplated herein and, to the
knowledge of such counsel, the consummation by the parties other than
the Company of the transactions contemplated herein (including the
Forward Arrangements) will not conflict with, result in a breach or
violation of, or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or its subsidiaries pursuant to,
(i) the charter (other than Sections 5.2(a), (b), (c) and (f) of the
Articles of Incorporation to the extent addressed by paragraphs (xiii)
and (xiv) below) or by-laws of the Company or its subsidiaries, (ii)
the terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument known to such counsel to which the
Company or any of its subsidiaries (including the Partnership) is a
party or bound or to which its or their property is subject, or (iii)
any statute, law, rule, regulation, judgment, order or decree known to
such counsel to be applicable to the Company or its subsidiaries
(including the Partnership) of any court, regulatory body,
administrative agency, governmental body or arbitrator or other
authority having jurisdiction over the Company or its subsidiaries or
any of its or their properties other than, in the case of clauses (ii)
and (iii), such breaches or violations which, if determined adversely
to the Company, would not reasonably be expected to have a material
adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole or on the consummation of the
transactions contemplated herein; except (1) such as have been, or
will have been prior to the Closing Date, obtained under the Act, (2)
such as may be required to be obtained by the Company, Holdings or the
Underwriters under the rules of the National Association of Securities
Dealers, Inc. or the New York Stock Exchange, and (3) such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and sale of the SynDECS by the Underwriters or the
delivery of the Regency Shares pursuant to the terms of the Forward
Arrangements and the SynDECS;
(x) to such counsel's knowledge, no holders of securities of the
Company have rights to the registration of such securities under the
Company Registration Statement;
25
(xi) the Company has qualified to be taxed as a real estate
investment trust pursuant to Sections 856 through 860 of the Code for
each taxable year since its inception through the most recently
completed fiscal year, and based on assumptions set forth in the
Company Prospectus and certain representations of the Company,
including but not limited to those set forth in an Officer's
Certificate, the Company's present and contemplated organization,
ownership, method of operation, assets and income, taking into account
the SynDECS, the Forward Arrangements, the Regency Shares loaned to
the Forward Counterparties in connection with the Forward Arrangements
and the Concurrent Forward Arrangements, are such that the Company is
in a position under present law to so qualify for the current fiscal
year and in the future;
(xii) the various actions of the Company's Board of Directors
waiving the Ownership Limit (as defined by the Company's Articles of
Incorporation) for the Selling Stockholder and the Forward
Arrangements, as set forth in the resolutions adopted June 11, 2003
(together, the "Board Action"), were duly authorized, are legal, valid
and binding on the Company and remain in full force and effect as of
the date hereof;
(xiii) the Forward Agreements and the Confirms (i) will not
result in a violation by the Forward Counterparties and their
affiliates of the 7% Ownership Limit for the number of Regency Shares
that are the subject of the Forward Agreements and the Confirms
(including, for this purpose, Regency Shares loaned to the Forward
Counterparties in connection with the Forward Agreements and the
Confirms), other than Regency Shares, if any, constituting more than
9.8% by value of the Company's outstanding capital stock (after giving
effect to any Regency Common Stock repurchased by the Company pursuant
to the purchase and sale agreement between the Company and the Selling
Stockholder with respect to $150,000,000 of Regency Common Stock)
during the applicable term of the Forward Agreements and the Confirms
and, if applicable, during the term of the SynDECS and for a period of
90 days thereafter; provided that no Person (as defined in the
Company's Articles of Incorporation) who is an individual as defined
in section 542(a)(2) of the Code (as modified by section 856(h) of the
Code) becomes the Beneficial Owner (as defined in the Company's
Articles of Incorporation) of more than 9.8% by value of the Company's
capital stock solely by reason of directly or indirectly acquiring
ownership of capital stock of the applicable Forward Counterparty
(disregarding any shares of the Company's capital stock other than
those owned by the applicable Forward Counterparty and its
subsidiaries); and provided, further, that the percentage limits
referred to herein shall be adjusted upward appropriately in the event
of any repurchases of Regency Common Stock by the Company other than
repurchases pursuant to the purchase and sale agreement between the
Company and the Selling Stockholder referred to herein; and (ii) will
not result in a violation by the Forward Counterparties and their
affiliates of the Related Tenant Limit (as defined by the Company's
Articles of Incorporation) for the number of Regency Shares that are
the subject of the Forward Agreements and the Confirms (including, for
this purpose, Regency Shares
26
loaned to the Forward Counterparties in connection with the Forward
Agreements and the Confirms), unless and except to the extent that (1)
a Forward Counterparty and its affiliates directly own or
Constructively Own (as defined by the Company's Articles of
Incorporation, but without regard to the Forward Agreements, the
Confirms, the UBS Agreement and the UBS Confirm) Regency Shares that
constitute more than 9.8% by value of the Company's outstanding
capital stock (after giving effect to any Regency Common Stock
repurchased by the Company pursuant to the purchase and sale agreement
referred to herein) less the number of Regency Shares subject to the
Forward Agreements and the Confirms entered into by such Forward
Counterparty and its affiliates during the applicable term of the
Forward Agreements and the Confirms and, if applicable, during the
term of the SynDECS and for a period of 90 days thereafter, or (2) the
Regency Shares subject to the Forward Agreements and the Confirms
entered into by a Forward Counterparty and its affiliates during the
applicable term of the Forward Agreements and the Confirms and, if
applicable, during the term of the SynDECS and for a period of 90 days
thereafter exceeds 9.8% by value of the Company's outstanding capital
stock (after giving effect to any Regency Common Stock repurchased by
the Company pursuant to the purchase and sale agreement referred to
herein);
(xiv) the UBS Agreement will not cause Holdings and its
affiliates to be considered as owning shares of Regency Common Stock
in excess of the Related Tenant Limit (as defined in the Company's
Articles of Incorporation) for purposes of the limitations set forth
in Sections 5.2(b) and 5.2(f) of the Company's Articles of
Incorporation or to own the shares of Regency Common Stock covered by
the UBS Agreement for purposes of the 7% Ownership Limit.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Florida or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of fact,
to the extent they deem proper, on certificates of responsible officers of
the Company and public officials. References to the Company Prospectus in
this paragraph (e) shall also include any amendments or supplements thereto
at the Closing Date.
(e) The Selling Stockholder shall have requested and caused Hogan &
Hartson L.L.P., counsel for the Selling Stockholder, to have furnished to
the Representatives their opinion, dated the Closing Date and addressed to
the Representatives, to the effect that:
(i) upon payment for the Regency Shares as provided in the
applicable Forward Agreement and Confirm, and the crediting of such
Regency Shares on the books of The Depository Trust Company to the
securities accounts (within the meaning of Section 8-501 of the UCC)
of the various Forward Counterparties (assuming that each of the
Forward Counterparties lacks notice of any "adverse
27
claim" (within the meaning of Section 8-102 of the UCC) to the Regency
Shares), (A) each of the Forward Counterparties will acquire valid
"security entitlements" in respect of the Regency Shares purchased by
such Forward Counterparty (within the meaning of Section 8-102 of the
UCC) and (B) no action based on any "adverse claim" (within the
meaning of Section 8-102 of the UCC) to the Regency Shares, whether
framed in conversion, replevin, constructive trust, equitable lien or
other theory, may be asserted against such Forward Counterparty with
respect to such security entitlements;
(ii) the statements (1) in the second paragraph under the caption
"Relationship Among Citigroup, Regency and the Selling Shareholder"
and in the fifth paragraph (excluding the last three sentences
thereof) under the caption "Underwriting" in the Holdings Prospectus
Supplement and (2) in the first paragraph and the second sentence of
the second paragraph under the caption "Prospectus Supplement
Summary--The Offering" and the first paragraph under the caption "Plan
of Distribution" (excluding the third last sentence and the last
sentence thereof) in the Company Prospectus Supplement, to the extent
that such statements summarize the provisions of the agreements or
documents identified therein, have been reviewed by us and are correct
in all material respects;
(iii) the Forward Agreements and the Stock Loan Agreement do not,
and the performance of the obligations thereunder by the Trust in
accordance with their respective terms will not, violate Section 7 of
the Exchange Act or Regulations T, U or X of the Board of Governors of
the Federal Reserve System.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters, and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Selling Stockholder and public officials.
(f) The Selling Stockholder shall have requested and caused Jeffrey
Klopf, General Counsel of the Selling Stockholder, to have furnished to the
Representatives his opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) each of this Agreement, the Forward Agreements and the
Confirms has been duly authorized, executed and delivered by the
Selling Stockholder or the Trust, as the case may be; assuming due
authorization, execution and delivery by the other parties thereto,
each of the Forward Agreements and the Confirms constitutes a valid
and legally binding agreement of the Trust enforceable against the
Trust in accordance with its respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
28
(ii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the
Selling Stockholder or the Trust of the transactions contemplated
herein or in the Forward Arrangements, except (1) such as may have
been obtained under the Act, (2) such as may be required to be
obtained by the Company, Holdings or the Underwriters under the rules
of the National Association of Securities Dealers, Inc. or the New
York Stock Exchange, and (3) such as may be required under the state
securities or Blue Sky laws of any jurisdiction in connection with the
purchase and distribution of the SynDECS by the Underwriters in the
manner contemplated in this Agreement or the delivery of the Regency
Shares pursuant to the terms of the Forward Arrangements and the
SynDECS and such other approvals (specified in such opinion) as have
been obtained; and
(iii) the delivery of the Regency Shares pursuant to the terms of
the Forward Arrangements and the consummation of any other of the
transactions herein and therein contemplated by the Selling
Stockholder and the Trust, as the case may be, and the performance by
the Selling Stockholder and the Trust, as the case may be, of their
obligations hereunder and thereunder will not conflict with, result in
a breach or violation of, or constitute a default under any law
(excluding Section 7 of the Exchange Act and Regulations T, U, and X
of the Board of Governors of the Federal Reserve System) or the
charter or By-laws of the Selling Stockholder or the terms of any
indenture or other agreement or instrument known to such counsel and
to which the Selling Stockholder or any of its subsidiaries is a party
or bound, or any judgment, order or decree known to such counsel to be
applicable to the Selling Stockholder or any of its subsidiaries of
any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Selling Stockholder or any
of its subsidiaries, other than such breaches or violation which, if
determined adversely to the Selling Stockholder, would not have a
material adverse effect on the consummation of the transactions
contemplated hereby and by the Forward Arrangements.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent he deems proper, on certificates of responsible
officers of the Selling Stockholder and public officials.
(g) The Selling Stockholder shall have requested and caused, David P.
Russell, Senior Counsel, Treasury Operations, for GECC, to have furnished
to the Representatives his opinion, dated the Closing Date and addressed to
the Representatives, to the effect that:
(i) the GE UA Guarantee has been duly authorized by GECC, has
been or will be duly executed and delivered by GECC, and upon
execution and delivery by GECC will constitute a valid and legally
binding agreement of GECC enforceable against GECC in accordance with
its terms;
29
(ii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by GECC
of the transactions contemplated in the GE UA Guarantee, except such
as may have been obtained; and
(iii) the execution and delivery of the GE UA Guarantee and the
consummation of the transactions therein contemplated by GECC and the
fulfillment of the terms thereof by GECC will not conflict with,
result in a breach or violation of, or constitute a default under any
law or the charter or By-laws of GECC or the terms of any indenture or
other agreement or instrument known to such counsel and to which GECC
or any of its subsidiaries is a party or bound, or any judgment, order
or decree known to such counsel to be applicable to GECC or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over GECC or any
of its subsidiaries.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent he deems proper, on certificates of responsible
officers of the Selling Stockholder and public officials.
(h) The Representatives shall have received from Cleary, Gottlieb,
Steen & Hamilton, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with respect
to the issuance and sale of the SynDECS, the Indenture, the Holdings
Registration Statement, the Holdings Prospectus (together with any
amendment or supplement thereto) and other related matters as the
Representatives may reasonably require, and each of Holdings, the Company
and the Selling Stockholder shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to
pass upon such matters.
(i) The Representatives shall have received from Sullivan & Cromwell
LLP a letter dated the Closing Date addressed to the Representatives to the
effect that, in such counsel's opinion, the Company Registration Statement,
and the Company Prospectus, as of the Effective Date of the Company
Registration Statement, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Act and the
applicable rules and regulations of the Commission thereunder; nothing that
came to such counsel's attention in the course of such review has caused
such counsel to believe that the Company Registration Statement, as of its
Effective Date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Company
Prospectus, as of its date, contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of the
30
circumstances under which they were made, not misleading; nothing that came
to the attention of such counsel in the course of the procedures described
has caused such counsel to believe that the Company Prospectus, as it may
be amended or supplemented, as of the Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; such counsel need
express no opinion or belief as to the financial statements or other
financial or statistical data contained in the Company Registration
Statement or the Company Prospectus.
(j) Holdings shall have furnished to you a certificate, dated the
Closing Date, of the Chairman of the Board, any Vice Chairman, the
President or any Vice President and of the principal financial or
accounting officer, the Treasurer or the Controller of Holdings to the
effect that the signers of such certificate have carefully examined the
Holdings Registration Statement, the Holdings Prospectus and this Agreement
and that:
(i) the representations and warranties of Holdings in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date, and Holdings has complied
in all material respects with all the agreements and satisfied all the
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Holdings
Registration Statement has been issued, and no proceedings for that
purpose have been instituted or, to their knowledge, threatened;
(iii) the Holdings Registration Statement, including any
supplements or amendments thereto, does not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; the Holdings Prospectus, including any
supplements or amendments thereto, does not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and since the Effective Date of the Holdings Registration
Statement there has not occurred any event concerning which
information is required to be contained in an amended or supplemented
Holdings Prospectus concerning which such information is not contained
therein; and
(iv) there have been no material adverse changes in the general
affairs of Holdings and its subsidiaries taken as a whole or in the
financial position as shown by information contained in the Holdings
Registration Statement and the Holdings Prospectus, other than changes
disclosed in or contemplated by the Holdings Registration Statement
and the Holdings Prospectus.
(k) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
or two other authorized signatories, dated the Closing Date, to the effect
that the signers of such certificate have carefully examined the Company
Registration Statement, the Company Prospectus, any amendments or
supplements to the Company Prospectus and this Agreement and that:
31
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Company
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Company Prospectus
(exclusive of any amendment or supplement thereto), there has been no
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Company Prospectus (exclusive of any
amendment or supplement thereto).
(l) The Selling Stockholder shall have furnished to the
Representatives a certificate, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Selling
Stockholder, or two other authorized signatories, dated the Closing Date,
to the effect that the signers of such certificate have carefully examined
the Company Registration Statement, the Company Prospectus, any amendment
or supplement to the Company Prospectus, the Forward Agreements and this
Agreement and that the representations and warranties of the Selling
Stockholder in this Agreement are true and correct in all material respects
on and as of the Closing Date to the same effect as if made on the Closing
Date.
(m) The Representatives shall have received on the Closing Date
letters from PricewaterhouseCoopers LLP and KPMG LLP, with respect to the
Holdings Registration Statement and the Holdings Prospectus at the time of
the Agreement, to the effect that:
(i) They are independent auditors with respect to Holdings within
the meaning of the Act and the applicable published rules and
regulations thereunder.
(ii) In their opinion, the consolidated financial statements and
financial statement schedules audited by them and incorporated by
reference in the Holdings Registration Statement comply as to form in
all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published rules and
regulations.
(iii) They have read the minutes of the meetings of the board of
directors of Holdings and its subsidiaries as set forth in the minute
books of all such meetings through the date as set forth therein.
32
(iv) With respect to the unaudited financial statements, if any,
included or incorporated by reference in the Holdings Registration
Statement, they have:
(1) Performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial statement information as described in SAS No. 100,
Interim Financial Information, on the unaudited condensed
consolidated financial statements for these periods, described in
(iv).
(2) Inquired of certain officials of Holdings who have
responsibility for financial statement and accounting matters
whether the unaudited condensed consolidated financial statements
referred to in (iv)(1) comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act
as it applies to Form 10-Q and the related published rules and
regulations.
(v) Nothing came to their attention as a result of the foregoing
procedures, however, that caused them to believe that:
(1) Any material modifications should be made to the
unaudited condensed consolidated financial statements described
in (iv), incorporated by reference in the Holdings Registration
Statement, for them to be in conformity with generally accepted
accounting principles.
(2) The unaudited condensed consolidated financial
statements described in (iv) do not comply as to form in all
material respects with the applicable accounting requirements of
the Exchange Act as it applies to Form 10-Q and the related
published rules and regulations.
(vi) (1) At the date of the most recent interim period financial
statement, there was any change in the capital stock, increase in
long-term debt, or any decreases in the consolidated net current
assets or stockholders' equity of Holdings as compared with amounts
shown in the most recent quarter end unaudited condensed financial
balance sheet incorporated by reference in the Holdings Registration
Statement or (2) for the period from the most recent quarter end to a
subsequent specified date not more than five business days prior to
the date of such letter, there were any decreases, as compared with
the corresponding period in the preceding year, in consolidated
revenues, or income before extraordinary items, except in all
instances for changes, increases, or decreases that the Holdings
Registration Statement discloses have occurred or may occur.
(vii) In addition to the procedures performed above, they have
carried out certain other specified procedures, not constituting an
audit, with respect to certain dollar amounts, percentages and ratios
which are included in the Holdings Prospectus and which are specified
by the Underwriters and have found such dollar amounts, percentages
and ratios to be in agreement, except as noted in such
33
letter, with the relevant accounting, financial and other records of
Holdings and its subsidiaries identified in such letter.
(n) The Company shall have requested and caused KPMG LLP to have
furnished to the Representatives and the Selling Stockholder, at the
Execution Time and at the Closing Date, letters, dated respectively as of
the Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable Rules and Regulations thereunder and that they have
performed a review of the unaudited interim financial information of the
Company for the three-month period ended March 31, 2003, and as at March
31, 2003 in accordance with Statement on Auditing Standards No. 100, and
stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules and, if applicable, pro forma financial
statements included or incorporated by reference in the Company
Registration Statement and the Company Prospectus and reported on by
them comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related Rules and Regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their
limited review, in accordance with standards established under
Statement on Auditing Standards No. 100, of the unaudited interim
financial information for the three-month period ended March 31, 2003,
and as at March 31, 2003, incorporated by reference in the Company
Registration Statement and the Company Prospectus; carrying out
certain specified procedures (but not an examination in accordance
with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors and the executive, audit and
investment committees of the Company and its subsidiaries; and
inquiries of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to December 31,
2003, nothing came to their attention which caused them to believe
that:
(1) any unaudited financial statements included or
incorporated by reference in the Company Registration Statement
and the Company Prospectus do not comply as to form in all
material respects with applicable accounting requirements of the
Act and with the related Rules and Regulations with respect to
financial statements included or incorporated by reference in
quarterly reports on Form 10-Q under the Exchange Act; and said
unaudited financial statements are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements
34
included or incorporated by reference in the Company Registration
Statement and the Company Prospectus;
(2) with respect to the period subsequent to March 31, 2003,
there were any changes, at a specified date not more than five
days prior to the date of the letter, in the consolidated capital
stock (other than issuances of capital stock in connection with
dividend reinvestment plans, upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and
upon conversions of convertible securities, in each case which
were outstanding on the date of the latest balance sheet included
or incorporated by reference in the Company Prospectus) or any
increase in the consolidated mortgage loans payable or long-term
debt of the Company and its subsidiaries or the Partnership and
its subsidiaries, or any decreases in total assets or
stockholders' equity or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the amounts shown
on the March 31, 2003 consolidated balance sheet included or
incorporated by reference in the Company Registration Statement
and the Company Prospectus, or for the period from April 1, 2003
to such specified date there were any decreases, as compared with
the comparable period of the preceding year consolidated net
revenues or operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
all instances for changes or decreases set forth in such letter,
in which case the letter shall be accompanied by an explanation
by the Company as to the significance thereof unless said
explanation is not deemed necessary by the Representatives; or
(3) the information included or incorporated by reference in
the Company Registration Statement and the Company Prospectus in
response to Regulation S-K, Item 301 (Selected Financial Data),
Item 302 (Supplementary Financial Information), and Item 503(d)
(Ratio of Earnings to Fixed Charges) is not in conformity with
the applicable disclosure requirements of Regulation S-K;
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Company Registration Statement and the Company Prospectus
and in Exhibit 12 to the Company Registration Statement, including the
information set forth under the captions "Selected Consolidated
Financial Data" in the Company Prospectus and the information included
or incorporated by reference in Items 1, 6 and 7 of the Company's
Annual Report on Form 10-K, incorporated by reference in the Company
Registration Statement and the Company Prospectus, and the information
included in the "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or incorporated by
reference in the Company's Quarterly Reports on Form 10-Q,
incorporated by
35
reference in the Company Registration Statement and the Company
Prospectus, agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
References to the Company Prospectus in this paragraph (n) include any
amendment or supplement thereto at the date of the letter.
(o) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Holdings Registration Statement
(exclusive of any amendment thereof) and the Holdings Prospectus (exclusive
of any amendment or supplement thereto), there shall not have been (i) any
change or decrease specified in the letter or letters referred to in
paragraph (m) above or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or otherwise),
earnings, business or properties of Holdings and its subsidiaries, taken as
a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Holdings Prospectus
(exclusive of any amendment or supplement thereto) the effect of which, in
any case referred to in clause (i) or (ii) above, is, in the sole judgment
of the Representatives, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or delivery of the SynDECS as
contemplated by the Holdings Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any amendment or
supplement thereto).
(p) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Company Registration Statement (exclusive
of any amendment thereof) and the Company Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (n) above or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Company Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the sole judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the SynDECS as contemplated by the Company
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto).
(q) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the debt securities of Holdings or the
Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given of
any intended or potential decrease in any such rating.
36
(r) At the Execution Time, the Company shall have used good faith
efforts to furnish to the Representatives a letter substantially in the
form of Exhibit B hereto from each executive officer and director of the
Company addressed to the Representatives.
(s) The SynDECS shall have been listed and admitted and authorized for
trading on the New York Stock Exchange, and satisfactory evidence of such
actions shall have been provided to the Representatives.
(t) The Confirms shall have been executed and delivered by the Trust
and the Forward Counterparties, substantially in the form set forth in
Exhibit A to the respective Forward Agreement and with such pricing terms
as may be agreed by the Selling Stockholder and Holdings in connection with
the pricing of the SynDECS.
(u) An agreement relating to stock lending arrangements (the "Stock
Loan Agreement") shall have been executed and delivered by the Trust (and
its agent) and Citigroup Global Markets Inc., substantially in the form of
the Concurrent Stock Loan Agreement (but excluding the provisions in
Section 6 of the Supplemental Securities Loan Agreement relating to the
assignment of the stock loan and related matters) and with such other
changes as the parties may agree.
(v) Prior to the Closing Date, the Company and the Selling Stockholder
shall have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 10 shall not have been
fulfilled when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company and
the Selling Stockholder in writing or by telephone or facsimile confirmed in
writing.
The documents required to be delivered by this Section 10 shall be
delivered to Cleary, Gottlieb, Steen & Hamilton, 1 Liberty Plaza, New York, New
York 10006, attention of Raymond B. Check, Esq., on the Closing Date.
11. Reimbursement of Expenses. The Company and the Selling Stockholder
jointly and severally covenant and agree with each of the several Underwriters
and each of the several Forward Counterparties that, whether or not the
transactions contemplated in this Agreement are consummated or this Agreement is
terminated, (i) the Selling Stockholder will pay or cause to be paid all
registration, filing and stock exchange or National Association of Securities
Dealers fees, all fees and expenses of complying with securities or blue sky
laws, all printing expenses, messenger and delivery expenses, any fees and
disbursements of any counsel retained by the Selling Stockholder, all
underwriting discounts and commissions and transfer taxes, if any, and any
premiums and other costs of policies of insurance obtained by the Selling
Stockholder against liabilities arising out of the public offering of the
Regency Shares, and
37
(ii) the Company will pay or cause to be paid the fees and disbursements of
counsel and independent public accountants for the Company incurred in
connection with the registration of the Regency Shares under the Act, including
the expenses of any special audits or "cold comfort" letters required by or
incident to such registration, and any premiums and other costs of policies of
insurance obtained by the Company against liabilities arising out of the sale of
the Regency Shares; provided that the Selling Stockholder shall reimburse the
Company for the first $25,000 of fees and disbursements of counsel and
independent public accountants for the Company included in connection with the
registration of the Regency Shares; provided, however, that the Underwriters
agree to pay to the Selling Stockholder up to an amount as agreed by the
Underwriters and the Selling Stockholder in reimbursement of such expenses. It
is understood, however, that, except as provided in this Section and Section 12
hereof, the Underwriters and the Forward Counterparties will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the SynDECS or Regency Shares by them, and any advertising
expenses connected with any offers they may make.
12. Indemnification and Contribution.
(a) Holdings agrees to indemnify and hold harmless the Company, the
Selling Stockholder, each Underwriter, the directors, officers, employees
and agents of the Company, the Selling Stockholder and each Underwriter,
and each person who controls the Company, the Selling Stockholder or any
Underwriter within the meaning of the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Holdings Registration Statement as originally filed or in any amendment
thereof, or in any Preliminary Holdings Prospectus or the Holdings
Prospectus, or in any amendment thereto or supplement thereto (each such
document, a "Holdings Registration Document") or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (ii) any
untrue statement or alleged untrue statement of a material fact contained
in the Company Registration Statement as originally filed or in any
amendment thereof, or in any Preliminary Company Prospectus or the Company
Prospectus, or in any amendment thereof or supplement thereto (each such
document, a "Company Registration Document"), or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but, with respect
to this clause (ii) only, only to the extent such untrue statement, alleged
untrue statement, omission or alleged omission was made in reliance upon
and in conformity with written information furnished by Holdings to the
Company specifically for use therein; and in each such case agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending against any such loss, claim, damage, liability or action;
provided, however, that Holdings will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made in any
38
Holdings Registration Document in reliance upon and in conformity with
written information furnished to Holdings by or on behalf of the Company,
the Selling Stockholder or any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which Holdings may otherwise have.
(b) The Company agrees to indemnify and hold harmless Holdings, the
Selling Stockholder, each Underwriter, the directors, officers, employees
and agents of each Underwriter, the Selling Stockholder and Holdings, and
each person who controls Holdings, the Selling Stockholder or any
Underwriter within the meaning of the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in any
Company Registration Document, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading or (ii) any untrue statement or
alleged untrue statement of a material fact contained in any Holdings
Registration Document, or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, but, with respect to this clause (ii)
only, only to the extent such untrue statement, alleged untrue statement,
omission or alleged omission was made in reliance upon and in conformity
with written information furnished by the Company to Holdings specifically
for use therein; and in each such case agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending against any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made in any Company Registration Document in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of Holdings, the Selling Stockholder or any Underwriter through the
Representatives specifically for inclusion therein; provided, further, that
the Company shall not be liable to any person who participates as an
underwriter in the offering or sale of the SynDECS or the delivery of the
Regency Shares pursuant to the Forward Arrangements or any other person, if
any, who controls such underwriter within the meaning of the Securities Act
in any such case to the extent that any such loss, claim, damage, liability
(or action or proceeding in respect thereof) or expense arises out of such
person's failure to send or give a copy of the final prospectus or
supplement to the persons asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of SynDECS or Regency Shares to such person if
such statement or omission was corrected in such final prospectus or
supplement. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
39
(c) The Selling Stockholder agrees to indemnify and hold harmless
Holdings, the Company, each Underwriter, the directors, officers, employees
and agents of each Underwriter, the Company and Holdings, and each person
who controls Holdings, the Company or any Underwriter within the meaning of
the Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Company Registration Statement as originally
filed or in any amendment thereof, or in any Preliminary Company Prospectus
or the Company Prospectus, or in any amendment thereof or supplement
thereto (each such document, a "Company Registration Document"), or the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading or (ii) any untrue statement or alleged untrue statement of a
material fact contained in any Holdings Registration Document, or the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, but, in each such case, only to the extent such untrue
statement, alleged untrue statement, omission or alleged omission was made
in reliance upon and in conformity with written information furnished by
the Selling Stockholder to the Company or Holdings, as the case may be,
specifically for use in the Company Registration Document or the Holdings
Registration Document, respectively (the "Selling Stockholder
Information"); and in each such case agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending against any
such loss, claim, damage, liability or action. This indemnity agreement
will be in addition to any liability which the Selling Stockholder may
otherwise have. The Company, Holdings and the Underwriters each acknowledge
that the statements identified in writing to Holdings or the Company, as
the case may be, constitute the only information furnished in writing by or
on behalf of the Selling Stockholder for inclusion in the Holdings
Registration Documents or the Company Registration Documents, respectively.
(d) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless Holdings, the Company, the Selling Stockholder and each of
their respective directors, each of Holdings' officers who signs the
Holdings Registration Statement, each of the Company's officers who signs
the Company Registration Statement, and each person who controls Holdings,
the Company or the Selling Stockholder within the meaning of either the Act
or the Exchange Act, against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Holdings Registration Document or Company
Registration Document, or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not
40
misleading, but only with reference to written information relating to such
Underwriter furnished to Holdings or the Company, respectively, by or on
behalf of such Underwriter through the Representatives specifically for
inclusion in the Holdings Registration Documents or the Company
Registration Documents, respectively. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. The
Company, Holdings and the Selling Stockholder each acknowledge that the
statements identified in writing to Holdings or the Company, as the case
may be, constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the Holdings
Registration Documents or the Company Registration Documents, respectively.
(e) Promptly after receipt by an indemnified party under this Section
12 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 12, notify the indemnifying party in writing of
the commencement thereof; but the omission so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a), (b), (c)
or (d) above unless and to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any event, relieve
the indemnifying party from obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a), (b), (c) or (d)
above. The indemnifying party shall be entitled to appoint counsel of
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
the institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless
41
such settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(f) In the event that the indemnity provided in paragraph (a), (b),
(c), (d) or (e) of this Section 12 is unavailable to or insufficient to
hold harmless an indemnified party for any reason, Holdings, the Company,
the Selling Stockholder, and the Underwriters severally agree to contribute
to the aggregate losses, claims, damages and liabilities (including legal
or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which Holdings, the Company, the
Selling Stockholder and one or more of the Underwriters may be subject in
such proportion as is appropriate to reflect the relative benefits received
by Holdings, the Company, the Selling Stockholder and the Underwriters from
the offering of the SynDECS; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the SynDECS) be responsible for any amount in
excess of the underwriting discount or commission applicable to the SynDECS
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, Holdings, the
Company, the Selling Stockholder, and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of Holdings, the Company, the
Selling Stockholder and the Underwriters in connection with the statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. The benefits received by the Selling Stockholder
shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) received by Holdings, and the benefits received
by the Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page of
the Holdings Prospectus. Relative fault shall be determined by reference
to, among other things, whether any untrue or any alleged untrue statement
of a material fact or the omission or alleged omission to state a material
fact relates to information provided by Holdings, the Company or the
Selling Stockholder, or the Underwriters, the intent of the parties and
their relative knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. Holdings, the Company, the
Selling Stockholder and the Underwriters agree that it would not be just
and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (e), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 12, each person who controls an Underwriter within
the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter; and each person who controls Holdings,
the Company or the Selling Stockholder within the meaning of either the Act
or the Exchange Act, each officer of Holdings who shall have signed the
Holdings Registration Statement, each officer of the Company who shall have
signed the Company Registration Statement and each director of Holdings,
the Company or the Selling Stockholder shall have the same rights to
42
contribution as Holdings, the Company or the Selling Stockholder,
respectively; subject in each case to the applicable terms and conditions
of this paragraph (f).
(g) The liability of the Selling Stockholder under the Selling
Stockholder's representations and warranties contained in Section 3 hereof
and under the indemnity and contribution agreements contained in this
Section 12 shall be limited to an amount equal to the price of the Regency
Shares multiplied by the number of Regency Shares sold by the Selling
Stockholder to the Forward Counterparties pursuant to the Forward
Agreements. The Company and the Selling Stockholder may agree, as among
themselves and without limiting the rights of Holdings or the Underwriters
under this Agreement, as to the respective amounts of such liability for
which they each shall be responsible.
13. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the SynDECS agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of SynDECS set forth
opposite their names in Schedule I hereto bears to the aggregate amount of
SynDECS set forth opposite the names of all the remaining Underwriters) the
SynDECS which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
SynDECS which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of SynDECS set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the SynDECS, and
if such nondefaulting Underwriters do not purchase all the SynDECS, this
Agreement will terminate without liability to any nondefaulting Underwriter,
Holdings, the Company or the Selling Stockholder. In the event of a default by
any Underwriter as set forth in this Section 13, the Closing Date shall be
postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in the
Company Registration Statement, the Company Prospectus, the Holdings
Registration Statement and the Holdings Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to Holdings, the Company,
the Selling Stockholder and any nondefaulting Underwriter for damages occasioned
by its default hereunder.
14. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company at or
prior to the Closing Date, if at any time at or prior to such time (i) trading
in any class of Holdings' debt securities or the Company's Common Stock shall
have been suspended by the Commission or the New York Stock Exchange or trading
in securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
a banking moratorium shall have been declared either by Federal or New York
State authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war,
or other calamity or crisis the effect of which on financial markets is such as
to make it, in the sole judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the SynDECS as
contemplated by the Holdings Prospectus (exclusive of any amendment or
43
supplement thereto) or (iv) a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States.
15. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of Holdings, the
Company, the Selling Stockholder or their respective officers, if applicable,
and of the Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter, Holdings, the Company, the Selling Stockholder or any
of the officers, directors or controlling persons referred to in Section 12
hereof, and will survive delivery of and payment for the SynDECS. The provisions
of Sections 11 and 12 hereof shall survive the termination or cancellation of
this Agreement.
16. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to Citigroup Global Markets Inc., General Counsel (fax no.: (212)
816-7912) and confirmed to the General Counsel, care of Citigroup Global Markets
Inc., at 388 Greenwich Street, New York, New York 10013 and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, 4 World Financial Center, New York, New
York 10080, Attention: Scott Eisen, Investment Banking (fax no.: (212)
449-9143); if sent to Holdings, will be mailed, delivered, or telefaxed and
confirmed to it at the address of Holdings set forth in the Holdings
Registration Statement; if sent to the Company, will be mailed, delivered or
telefaxed and confirmed to it at the address of the Company set forth in the
Company Registration Statement; or if sent to the Selling Stockholder will be
mailed, delivered or telefaxed to c/o GE Capital Real Estate, 292 Long Ridge
Road, Stamford, Connecticut 06927, Attention: Legal Operation/Security Capital
(fax no.: (203) 357-6768) and confirmed to it at Hogan & Hartson L.L.P., 555
13th Street NW, Washington, DC, 20004-1109, Attention: J. Warren Gorrell, Jr.
(fax no.: (202) 637-5910).
44
17. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 12 hereof, and no other
person will have any right or obligation hereunder.
18. Applicable Law. This agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
19. Counterparts. This Agreement may be executed by any one or more of the
parties in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
agreement.
20. Headings. The section headings used herein are for convenience only and
shall not affect the construction hereof.
21. Definitions. The terms which follow, when used in this Agreement, shall
have the meanings indicated.
"7% Ownership Limit" means the Ownership Limit, as such term is defined in
the Company's Articles of Incorporation.
"Act" shall mean the Securities Act of 1933, as amended, and the Rules and
Regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" shall mean the Securities and Exchange Commission.
"Company Preliminary Prospectus" shall mean any preliminary prospectus
relating to the Regency Common Stock referred to in Section 2(a) and any
preliminary prospectus included in the Company Registration Statement at its
Effective Date that omits Rule 430A Information.
"Company Prospectus" shall mean the prospectus relating to the Regency
Shares that is first filed pursuant to Rule 424(b) after the Execution Time or,
if filing pursuant to Rule 424(b) is not required, shall mean the form of final
prospectus relating to the Regency Shares included in the Company Registration
Statement at the Effective Date.
"Company Registration Statement" shall mean the registration statement
referred to in paragraph 2(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Company
45
Registration Statement becomes effective prior to the Closing Date, shall also
mean such registration statement as so amended or such Rule 462(b) Company
Registration Statement, as the case may be. Such term shall include any Rule
430A Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Effective Date" shall mean each date and time that (i) with respect to the
Holdings Registration Statement, such the Holdings Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b) Holdings
Registration Statement become or becomes effective, and (ii) with respect to the
Company Registration Statement, such Company Registration Statement any
post-effective amendment or amendments thereto and any Rule 462(b) Company
Registration Statement become or becomes effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the Rules and Regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Holdings Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a) above and any preliminary prospectus included in
the Holdings Registration Statement at the Effective Date that omits Rule 430A
Information.
"Holdings Prospectus" shall mean the prospectus relating to the SynDECS
that is first filed pursuant to Rule 424(b) after the Execution Time or, if
filing pursuant to Rule 424(b) is not required, shall mean the form of final
prospectus relating to the SynDECS included in the Registration Statement at the
Effective Date.
"Holdings Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Holdings
Registration Statement becomes effective prior to the Closing Date, shall also
mean such registration statement as so amended or such Rule 462(b) Holdings
Registration Statement, as the case may be. Such term shall include any Rule
430A Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Investment Company Act" shall mean the Investment Company Act of 1940, as
amended, and the Rules and Regulations of the Commission promulgated thereunder.
"Rule 415," "Rule 424," "Rule 430A," "Rule 462," "Rule 497(h)," "Regulation
S-K" and "Regulation S-X" refer to such Rules and Regulations under the Act.
"Rule 430A Information" shall mean information with respect to the SynDECS,
or the Regency Shares and the offering thereof permitted to be omitted from the
Holdings Registration Statement or the Company Registration Statement,
respectively, when it becomes effective pursuant to Rule 430A.
46
"Rule 462(b) Company Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the initial registration statement referred to in
Section 2(a) above.
"Rule 462(b) Holdings Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the initial registration statement referred to in
Section 1(a) above.
"Rules and Regulations" shall mean the rules and regulations of the
Securities and Exchange Commission.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended.
"UCC" shall mean the Uniform Commercial Code as currently in effect in the
State of New York.
As used herein, the terms "Holdings Registration Statement," "Preliminary
Holdings Prospectus" and "Holdings Prospectus" shall not include the Company
Registration Statement, the Company Preliminary Prospectus or the Company
Prospectus attached thereto.
As used herein, the terms "Company Registration Statement", "Preliminary
Company Prospectus", and "Company Prospectus" shall not include the Holdings
Registration Statement, the Holdings Preliminary Prospectus or the Holdings
Prospectus.
47
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among Holdings,
the Company, the Selling Stockholder and the several Underwriters.
Very truly yours,
CITIGROUP GLOBAL MARKETS HOLDINGS INC.
By: /s/ Mark I. Kleinman
-----------------------------------
Name: Mark I. Kleinman
Title: Executive Vice President,
Treasurer
REGENCY CENTERS CORPORATION
By: /s/ Martin E. Stein, Jr.
-----------------------------------
Name: Martin E. Stein, Jr.
Title: Chairman
SECURITY CAPITAL GROUP INCORPORATED
By: /s/ Philip A. Mintz
-----------------------------------
Name: Philip A. Mintz
Title: Vice President
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
CITIGROUP GLOBAL MARKETS INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: Citigroup Global Markets Inc.
By: /s/ Jeff Horowitz
-----------------------------------
Name: Jeff Horowitz
Title: Managing Director
For themselves and the other
several Underwriters named in
Schedule I to the foregoing Agreement.
48
SCHEDULE I
Number of Underwritten
Underwriters SynDECS to be Purchased
Citigroup Global Markets Inc........................ 3,600,000
Merrill Lynch, Pierce, Fenner
& Smith Incorporated........................... 3,600,000
---------
Total............................. 7,200,000
---------
I-1
Exhibit A
Subsidiaries of Regency Centers Corporation and Equity Ownership Thereof
June 18, 2003
% OF
ENTITY JURISDICTION OWNER(S) NATURE OF INTEREST OWNERSHIP
- ------------------------- -------------- ------------------------------------------ ------------------- ----------
Regency Centers, L.P. Delaware Regency Centers Corporation General Partnership 1.0%
Regency Centers Texas, LLC Limited Partnership 96.3%
Outside Investors Limited Partnership 2.7%
Regency Remediation, LLC Florida Regency Centers, L.P. Member 100%
Queensboro Associates, Georgia Regency Centers, L.P. General Partnership 50%
L.P. Real Sub, LLC (Outside Investor) Limited Partnership 50%
Northlake Village
Shopping Center, LLC Florida Regency Centers, L.P. Member 100%
Regency Southgate Village Alabama Regency Centers, L.P. Member 100%
Shopping Center, LLC
RRG Holdings, LLC Florida Regency Centers, L.P. Member 100%
Regency Opitz, LLC Delaware Regency Centers, L.P. Member 100%
Regency Realty Group, Florida Regency Centers, L.P. Preferred Stock 100%
Inc. Common Stock 7%
RRG Holdings, LLC Common Stock 93%
% OF
ENTITY JURISDICTION OWNER(S) NATURE OF INTEREST OWNERSHIP
- ------------------------- -------------- ------------------------------------------ ------------------- ----------
Regency Realty Colorado, Florida Regency Realty Group, Inc. Common Stock 80%
Inc. Snowden Leftwich Common Stock 20%
(See Note 1)
Chestnut Powder, LLC Georgia Regency Realty Group, Inc. Member 100%
Cherry Street Center, LLC Delaware Regency Realty Group, Inc. Member 100%
Marietta Outparcel, Inc. Georgia Regency Realty Group, Inc. Common Stock 100%
Thompson-Nolensville, LLC Florida Regency Realty Group, Inc. Member 100%
Dixon, LLC Florida Regency Realty Group, Inc. Member 100%
Rhett-Remount, Inc. South Carolina Regency Realty Group, Inc. Common Stock 100%
Edmunson Orange Corp. Tennessee Regency Realty Group, Inc. Common Stock 100%
Tulip Grove, LLC Florida Regency Realty Group, Inc. Member 100%
Hermitage Development, LLC Florida Regency Realty Group, Inc. Member 100%
West End Property, LLC Florida Regency Realty Group, Inc. Member 100%
Tinwood, LLC Florida Regency Realty Group, Inc. Member 50%
Outside Investor Member 50%
Mountain Meadow, LLC Delaware Regency Realty Group, Inc. Member 100%
Middle Tennessee
Development, LLC Delaware Regency Realty Group, Inc. Member 100%
A-2
% OF
ENTITY JURISDICTION OWNER(S) NATURE OF INTEREST OWNERSHIP
- ------------------------- -------------- ------------------------------------------ ------------------- ----------
Hermitage Development II,
LLC Florida Regency Realty Group, Inc. Member 100%
Bordeaux Development, LLC Florida Regency Realty Group, Inc. Member 100%
Atlantic-Pennsylvania,
LLC Florida Regency Realty Group, Inc. Member 100%
8th and 20th Chelsea, LLC Delaware Regency Realty Group, Inc. Member 100%
Regency Somerset, LLC Delaware Regency Realty Group, Inc. Member 100%
Slausen Central, LLC Delaware Regency Realty Group, Inc. Member Note 2
Jog Road, LLC Florida Regency Realty Group, Inc. Member 50%
Outside Investor Member 50%
Southland Centers II, LLC Florida Jog Road, LLC Member 100%
Broadman, LLC Delaware Regency Realty Group, Inc. Member 100%
GME/RRG I, LLC Delaware Regency Realty Group, Inc. Member 50%
Outside Investor Member 50%
K&G/Regency II, LLC Delaware Regency Realty Group, Inc. Member 50%
GME Anaheim, LLC (Outside Investor) Member 50%
RRG-RMC-Tracy, LLC Delaware Regency Centers, L.P. Member 50%
RMC Tracy, LLC (Outside Investor) Member 50%
A-3
% OF
ENTITY JURISDICTION OWNER(S) NATURE OF INTEREST OWNERSHIP
- ------------------------- -------------- ------------------------------------------ ------------------- ----------
Regency Ocean East
Partnership Limited Florida Regency Centers, L.P. General Partnership 25%
WLD Realty, Ltd. (Outside Investor) Limited Partnership 75%
Regency Woodlands/ Texas Regency Centers, L.P. General Partnership 50%
Kuykendahl, Ltd. HEB Grocery Company, LP (Outside Investor) Limited Partnership 50%
OTR/Regency Colorado Ohio Regency Centers, L.P. General Partnership 30%
Realty Holdings, L.P. OTR (nominee for State Teachers Limited Partnership 70%
Retirement Board of Ohio)
OTR/Regency Texas Realty Ohio Regency Centers, L.P. General Partnership 30%
Holdings, L.P. OTR (nominee for State Teachers Limited Partnership 70%
Retirement Board of Ohio)
R&KS Dell Range, LLC Wyoming Regency Centers, L.P. Member 100%
T&M Shiloh Development Texas Regency Centers, L.P. General Partnership 50%
Company Topvalco General Partnership 50%
T&R New Albany
Development Company LLC Ohio Regency Centers, L.P. Member 50%
Member 50%
Luther Properties, Inc. Tennessee Regency Realty Group, Inc. Common Stock 100%
Regency Realty Group, N.E. Florida Regency Realty Group, Inc. Common Stock 100%
Vista Village, LLC Delaware Regency Realty Group, Inc. Member 50%
Civic Partners Vista Village I, LLC Member 50%
A-4
% OF
ENTITY JURISDICTION OWNER(S) NATURE OF INTEREST OWNERSHIP
- ------------------------- -------------- ------------------------------------------ ------------------- ----------
Valleydale, LLC Florida Regency Realty Group, Inc. Member
East Towne Center, LLC Delaware Regency Realty Group, Inc. Member
Regency/DS Ballwin, LLC Missouri Regency Realty Group, Inc. Member 50%
DS Ballwin Partners, Inc. (Outside Member 50%
Investor)
Regency Centers Advisors,
LLC Florida Regency Centers, L.P. Member 100%
RC Georgia Holdings, LLC Georgia Regency Centers, L.P. Member 100%
Regency Centers Georgia, Georgia RC Georgia Holdings LLC General Partnership 1%
L.P. Regency Centers, L.P. Limited Partnership 99%
Regency Centers Texas, LLC Florida Regency Centers Corporation Member 100%
Columbia Regency Retail Delaware Regency Centers, L.P. Member 20%
Partners, LLC Oregon Public Employees
Retirement Fund Member 80%
Columbia Regency Texas 1, Delaware Regency Texas 1, LLC General Partnership 1%
L.P. Columbia Regency Retail Limited Partnership
Partners, LLC 99%
Regency Texas 1, LLC Delaware Columbia Regency Retail
Partners, LLC Member 100%
Columbia Retail Addison, Delaware Columbia Regency Retail Member 100%
LLC Partners, LLC
A-5
% OF
ENTITY JURISDICTION OWNER(S) NATURE OF INTEREST OWNERSHIP
- ------------------------- -------------- ------------------------------------------ ------------------- ----------
Columbia Retail Addison Delaware Columbia Retail Addison, LLC General Partnership 1%
Town Center, Limited Columbia Regency Retail Limited Partnership 99%
Partnership Partners, LLC
Columbia Retail Dulles, Delaware Columbia Regency Retail Member 100%
LLC Partners, LLC
Macquarie CountryWide- Delaware Regency Center, L.P. Member 25%
Regency, LLC Macquarie CountryWide (US)Corporation Member 75%
MCW-RC FL-King's, LLC
(fka MCW-RC Florida, LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Anastasia, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Ocala, LLC (fka
MCW-RC Florida 2, LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Pebblebrooke,
LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Shoppes at 104,
LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC NC-Oakley, LLC
(fka MCW-RC North
Carolina, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
A-6
% OF
ENTITY JURISDICTION OWNER(S) NATURE OF INTEREST OWNERSHIP
- ------------------------- -------------- ------------------------------------------ ------------------- ----------
MCW-RC SC-Merchant's, LLC
(fka MCW-RC South
Carolina, LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC VA-Brookville, LLC
(fka MCW-RC Virginia,
LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC Texas GP, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC TX-Hebron, LLC Delaware Macquarie CountryWide-Regency, LLC Limited Partnership 99.99%
(fka MCW-RC Texas, L.P.) MCW-RC Texas GP, LLC
General Partnership 0.01%
MCW-RC GA-Lovejoy, LLC
(fka MCW-RC Georgia, LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Orchard, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC CO-Cheyenne, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC CA-Campus, LLC
(fka MCW-RC California),
LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC CA-Garden Village,
LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC WA-James, LLC (fka
MCW-RC Washington, LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
A-7
% OF
ENTITY JURISDICTION OWNER(S) NATURE OF INTEREST OWNERSHIP
- ------------------------- -------------- ------------------------------------------ ------------------- ----------
MCW-RC KY-Silverlake, LLC
(fka MCW-RC Kentucky,
LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC AL-Southgate, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Lynn Haven, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Killian Hill,
LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC OH-Milford, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC OR-Hillsboro, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC SC-Rosewood, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
Columbia Retail
Washington 1, LLC Delaware Columbia Regency Retail Partners LLC Member 100%
Columbia Cascade Plaza, Delaware Columbia Regency Retail Washington 1, LLC Member 1%
LLC Columbia Regency Retail Partners, LLC
Member 99%
Columbia Retail Texas 2,
LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
A-8
% OF
ENTITY JURISDICTION OWNER(S) NATURE OF INTEREST OWNERSHIP
- ------------------------- -------------- ------------------------------------------ ------------------- ----------
Columbia Retail MacArthur
Phase II, LP Delaware Columbia Retail Texas 2, LLC Member 1%
Columbia Regency Retail Partners, LLC Member 99%
Note 1: Snowden Leftwich is a Regency employee who is the licensed broker for this entity. Colorado requires that the broker
must own a minimum of 20% of the equity in a licensed entity.
Note 2: Regency is negotiating with an outside investor to participate in Slausen Central, LLC. At this time the extent of
the participation has not been determined.
A-9
Exhibit B-2
Exhibit B
[Letterhead of executive officer, or director of
Corporation]
Regency Centers Corporation
Public Offering of Common Stock
June __, 2003
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
New York, New York 10080
As Representatives of the several Underwriters,
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), among Security Capital
Group Incorporated, a Maryland corporation (the "Selling Stockholder"), Regency
Centers Corporation, a Florida corporation (the "Company"), JPMorgan Chase Bank,
Merrill Lynch International, Wachovia Bank, National Association and each of you
as representatives of a group of Underwriters named therein, relating to an
underwritten public offering of Common Stock, $0.01 par value (the "Common
Stock"), of the Company, and the proposed Underwriting Agreement (the "SynDECS
Underwriting Agreement"), among Citigroup Global Markets Holdings Inc., a New
York corporation ("Holdings"), the Company, the Selling Stockholder, and each of
you as representatives of a group of Underwriters named therein, relating to an
underwritten public offering of SynDECS (Debt Exchangeable for Common Stock)
consisting of the Holdings' Variable Rate Exchange Notes Due June , 2006.
In order to induce you (the "Representatives") and the other Underwriters
to enter into the Underwriting Agreement and SynDECS Underwriting Agreement, as
applicable, the undersigned will not, without the prior written consent of the
Representatives, offer, sell, contract to sell, pledge or otherwise dispose of
(or enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
undersigned or any affiliate of the undersigned or any person in privity with
the undersigned or any affiliate of the undersigned), directly or indirectly,
including the filing (or participation in the filing) of a registration
statement with the Securities and Exchange Commission in respect of, or
establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder with respect to, any shares of Common
Stock or any securities convertible into Common Stock, or publicly announce an
intention to effect any such transaction, for a period of 90 days after the
later of the dates of the Underwriting Agreement and SynDECS Underwriting
Agreement, other than shares of Common Stock disposed of (i) in connection with
the transactions contemplated in the Underwriting Agreement and the SynDECS
Underwriting Agreement (including the related forward purchase contracts and
stock loan agreements) or (ii) as bona fide gifts, so long as the donee of such
gift agrees in writing to be bound by the restrictions set forth herein and
notice of such gift is given to the Representatives.
If for any reason both the Underwriting Agreement and SynDECS Underwriting
Agreement shall be terminated prior to the Closing Date (as defined in the
Underwriting Agreement), the agreement set forth above shall likewise be
terminated.
Yours very truly,
[Signature of executive officer or director]
[Name and address of executive officer or
director]
Exhibit B-2
