________________________________________________________________________________________________________________________________________________________________________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
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) August14, 2012
REGENCY CENTERS CORPORATION
REGENCY CENTERS, L.P.
(Exact name of registrant as specified in its charter)
Florida (Regency Centers Corporation) | 001-12298 (Regency Centers Corporation) | 59-3191743 (Regency Centers Corporation) |
Delaware (Regency Centers, L.P.) | 0-24763 (Regency Centers, L.P.) | 59-3429602 (Regency Centers, L.P.) |
(State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
One Independent Drive, Suite 114 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)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230 .425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
__________________________________________________________________________________________________________________________________________________________________________
Item 1.01 Entry into a Material Definitive Agreement.
On August 14, 2012, Regency Centers Corporation (the “Company”) and Regency Centers, L.P. (the “Operating Partnership”) executed and delivered an underwriting agreement (the “Underwriting Agreement”), by and among the Company, the Operating Partnership, Wells Fargo Securities, LLC and J.P. Morgan Securities LLC as representatives of the several Underwriters named in Exhibit A thereto (the “Underwriters”), relating to the issue and sale by the Company of a total of 3,000,000 shares of the Company's 6.0% Series 7 Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Series 7 Preferred Shares”). The issue and sale of the Series 7 Preferred Shares is expected to settle on August 23, 2012. Under the terms of the Underwriting Agreement, the Company and the Operating Partnership have agreed to indemnify the Underwriters against certain liabilities, including liabilities under the Securities Act of 1933, as amended (the “Securities Act”), or to contribute payments that the Underwriters may be required to make because of any of those liabilities. The Underwriting Agreement contains customary representations and covenants.
The offering of the Series 7 Preferred Shares was registered under the Securities Act pursuant to a registration statement on Form S-3 (Registration No. 333-174535) filed with the Securities and Exchange Commission (the “Commission”) on May 26, 2011. The terms of the Series 7 Preferred Shares are described in the Company's prospectus dated May 26, 2011, as supplemented by a prospectus supplement dated August 14, 2012.
The foregoing is not a complete discussion of the Underwriting Agreement and is qualified in its entirety by reference to the full text of the Underwriting Agreement attached to this Current Report on Form 8-K as Exhibit 1.1, which is incorporated herein by reference. In connection with the filing of the Underwriting Agreement, the Company and the Operating Partnership are filing on Exhibits 5.2 and 8.2 to this Current Report on Form 8-K the opinions of their counsel.
Item 3.03 Material Modification to Rights of Security Holders.
The Series 7 Preferred Shares will be redeemable at par at the Company's election on or after August 23, 2017, will pay a 6.0% annual dividend and will have a liquidation preference of $25.00 per share. With respect to the payment of dividends and amounts upon liquidation, the Series 7 Preferred Shares will rank equally with all of the Company's other outstanding preferred shares and will rank senior to the Company's common stock. Unless full dividends on the Series 7 Preferred Shares and any other class of the Company's stock ranking on parity with such preferred stock as to dividends have been paid for all past dividend periods, no distribution may be declared or paid on the Company's common stock or any other capital shares that rank junior to the Series 7 Preferred Shares as to dividends. In the event of the Company's liquidation, dissolution or winding up, the holders of the Series 7 Preferred Shares are entitled to be paid out of the Company's assets legally available for distribution to its shareholders a liquidation preference of $25.00 per share, plus an amount equal to any accumulated and unpaid dividends to the date of payment (and the holders of any other class of stock ranking on parity with such preferred stock as to liquidation are entitled to receive their respective liquidation preferences at the same time) before any distribution of assets is made to holders of the Company's common stock or any other capital shares that rank junior to the Series 7 Preferred Shares as to liquidation preference.
Generally, the Company may not redeem the Series 7 Preferred Shares prior to August 23, 2017. However, upon the occurrence of a “Change of Control” (as defined below), holders of Series 7 Preferred Shares will have the right (unless, prior to the Change of Control Conversion Date (as defined below), the Company has provided or provides notice of its election to redeem their Series 7 Preferred Shares) to convert some or all of their Series 7 Preferred Shares (the “Change of Control Conversion Right”) into a number of Common Shares per Series 7 Preferred Share to be converted equal to the lesser of:
Ÿ the quotient obtained by dividing (i) the sum of the $25.00 liquidation preference plus the amount of any accrued and unpaid distributions to, but not including, the Change of Control Conversion Date (unless the Change of Control Conversion Date is after a record date for a Series 7 Preferred Share distribution payment and prior to the corresponding Series 7 Preferred Share distribution payment date, in which case no additional amount for such accrued and unpaid distribution will be included in this sum) by (ii) the Common Share Price (as defined below); and
Ÿ 1.0419, subject to certain adjustments;
subject, in each case, to an aggregate cap on the total number of common shares issuable upon conversion of 3,125,700 common shares and to provisions for the receipt of alternative consideration, as described in the Amendment to the Company's Articles of Incorporation.
If the Company has provided or provides a redemption notice, whether pursuant to the Company's special optional redemption right in connection with a Change of Control or the Company's optional redemption right, holders of Series 7 Preferred Shares will not have any right to convert their Series 7 Preferred Shares in connection with the Change of Control Conversion Right and any Series 7 Preferred Shares subsequently selected for redemption that have been tendered for conversion will be redeemed on the related date of redemption instead of converted on the Change of Control Conversion Date.
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A “Change of Control” is when, after the original issuance of the Series 7 Preferred Shares, the following have occurred and are continuing:
Ÿ the acquisition by any person, including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of purchases, mergers or other acquisition transactions of shares of the Company entitling that person to exercise more than 50% of the total voting power of all shares of the Company entitled to vote generally in elections of Directors (except that such person will be deemed to have beneficial ownership of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition); and
Ÿ following the closing of any transaction referred to in the bullet above, neither the Company nor the acquiring or surviving entity has a class of common securities (or American Depositary Receipts representing such securities) listed on the New York Stock Exchange (the “NYSE”), the NYSE MKT or the NASDAQ Stock Market (“NASDAQ”) or listed or quoted on an exchange or quotation system that is a successor to the NYSE, the NYSE MKT or NASDAQ.
The “Change of Control Conversion Date” is the date the Series 7 Preferred Shares are to be converted, which will be a business day that is no fewer than 20 days nor more than 35 days after the date on which the Company provides the notice of occurrence of a Change of Control described above to the holders of Series 7 Preferred Shares.
The “Common Share Price” will be: (i) the amount of cash consideration per common share, if the consideration to be received in the Change of Control by the holders of the Company's common shares is solely cash; and (ii) the average of the closing prices for the Company's common shares on the NYSE for the ten consecutive trading days immediately preceding, but not including, the effective date of the Change of Control, if the consideration to be received in the Change of Control by the holders of the Company's common shares is other than solely cash.
A complete description of the Series 7 Preferred Shares is contained in the Amendment to the Company's Articles of Incorporation Designating the Preferences, Rights and Limitations of the Series 7 Preferred Shares incorporated by reference as Exhibit 3.1 to this Form 8-K.
Item 5.03 Amendments to Articles of Incorporation or Bylaws.
On August 15, 2012, the Company filed an Amendment to the Company's Restated Articles of Incorporation Designating the Preferences, Rights and Limitations of 3,000,000 Shares of 6.0% Series 7 Cumulative Redeemable Preferred Stock (the “Series 7 Amendment”). For additional information about the terms and conditions of the Series 7 Preferred Shares, see Item 3.03 above which is incorporated herein by reference and the Series 7 Amendment (Exhibit 3.1) which is incorporated herein by reference
The Company will contribute the net proceeds of the sale of the Series 7 Preferred Shares, immediately after the closing of the sale, to the Operating Partnership, in exchange for preferred units of limited partnership interest. The Series 7 Cumulative Redeemable Preferred Units will have substantially identical economic terms as the Series 7 Cumulative Redeemable Preferred Stock, as set forth in the Amendment dated August 23, 2012 to the Fourth Amended and Restated Agreement of Limited Partnership of the Operating Partnership Relating to 6.0% Series 7 Cumulative Redeemable Preferred Units (the “RCLP Series 7 Amendment”) executed by the Company, as general partner of the Operating Partnership. The RCLP Series 7 Amendment (Exhibit 3.2) is incorporated herein by reference.
The Operating Partnership's 6.0% Series 7 Cumulative Redeemable Preferred Units will rank, as to distributions and upon liquidation, winding-up or dissolution of the Operating Partnership, senior to all classes or series of Common Units and on parity with other preferred units in the Operating Partnership, as set forth in the RCLP Series 7 Amendment attached hereto.
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Item 9.01 Financial Statements and Exhibits
Exhibit Number | Description | |
1.1 | Underwriting Agreement, dated August 14, 2012, by and among Regency Centers Corporation, Regency Centers, L.P., Wells Fargo Securities, LLC and J.P. Morgan Securities LLC and each of the other Underwriters named in Exhibit A thereto. | |
3.1 | Amendment to the Company's Articles of Incorporation Designating the Preferences, Rights and Limitations of the Series 7 Preferred Shares, effective 15, 2012 | |
3.2 | Amendment to the Fourth Amended and Restated Agreement of Limited Partnership Relating to 6.0% Series 7 Cumulative Redeemable Preferred Units, effective as of August 23, 2012. | |
5.2 | Opinion of Foley & Lardner LLP as to the legality of the Series 7 Preferred Shares. | |
8.2 | Opinion of Foley & Lardner LLP regarding certain tax matters. | |
12.1 | Statement regarding computation of consolidated ratio of earnings to fixed charges and preferred stock dividends | |
23.1 | Consent of Foley & Lardner LLP (included in Exhibit 5.2). | |
23.2 | Consent of Foley & Lardner LLP (included in Exhibit 8.2). | |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
REGENCY CENTERS CORPORATION
August 16, 2012 By: /s/ J. Christian Leavitt
J. Christian Leavitt, Senior Vice President and Treasurer
REGENCY CENTERS, L.P.
By: Regency Centers Corporation, its general partner
August 16, 2012 By: /s/ J. Christian Leavitt
J. Christian Leavitt, Senior Vice President and Treasurer
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Exhibit 1.1
Execution Version
Regency Centers Corporation
3,000,000 Shares of
6.000% Series 7 Cumulative Redeemable Preferred Stock
(Liquidation Preference $25.00 per Share)
Underwriting Agreement
August 14, 2012
J.P. Morgan Securities LLC
Wells Fargo Securities, LLC
As representatives of the
several Underwriters named in Schedule I hereto
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
c/o Wells Fargo Securities, LLC
301 S. College Street
Charlotte, North Carolina 28288
Ladies and Gentlemen:
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, subject to the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I hereto (the “Underwriters”), for whom J.P. Morgan Securities LLC and Wells Fargo Securities, LLC are acting as representatives (the “Representatives”), 3,000,000 shares (the “Securities”) of 6.000% Series 7 Cumulative Redeemable Preferred Stock (Liquidation Preference $25.00 per share), $0.01 par value, of the Company (the “Preferred Stock”).
1.The Company and the Partnership jointly and severally represent and warrant to, and agree with, each of the Underwriters that:
(a)A registration statement on Form S‑3 (File No. 333-174535) (the “Initial Registration Statement”) in respect of the Securities has been filed with the Securities and Exchange Commission (the “Commission”) not earlier than three years prior to the date hereof; the Initial Registration Statement and any post-effective amendment thereto, each in the form heretofore delivered to the Representatives and, excluding exhibits thereto, but including all documents incorporated by reference in the prospectus contained therein, to the Representatives for each of the other Underwriters, which became effective upon filing; other than a registration statement, if any, increasing the size of the offering (a “Rule 462(b) Registration Statement”), filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the “Act”), which became effective upon filing, no other document with respect to the Initial Registration Statement or document incorporated by reference therein has heretofore been filed or transmitted for filing with the Commission (other than prospectuses filed pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act, each in the form heretofore delivered to the Representatives); and no stop order suspending the effectiveness of the Initial Registration Statement, any post-effective amendment thereto or the Rule 462(b) Registration Statement, if any, has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in the Initial Registration Statement or filed with the Commission pursuant to Rule 424(a) under the Act, is
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hereinafter called a “Preliminary Prospectus”; the various parts of the Initial Registration Statement and the Rule 462(b) Registration Statement, if any, including all exhibits thereto and including the information contained in the form of final prospectus filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to be part of the Initial Registration Statement at the time it was effective, each as amended at the time such part of the Initial Registration Statement became effective or such part of the Rule 462(b) Registration Statement, if any, became or hereafter becomes effective, are hereinafter collectively called the “Registration Statement”; the Preliminary Prospectus relating to the Securities that was included in the Registration Statement immediately prior to the Applicable Time (as defined in Section 1(b) hereof) is hereinafter called the “Pricing Prospectus”; the prospectus relating to the Securities , in the form in which it has most recently been filed, or transmitted for filing, with the Commission on or prior to the date of this Agreement, being hereinafter called the “Prospectus”; any reference herein to any Preliminary Prospectus, the Pricing 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 under the Act, as of the date of such prospectus; and any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated therein; any reference to any amendment to the Initial Registration Statement shall be deemed to refer to and include any annual or special report of the Company or the Partnership filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Initial Registration Statement that is incorporated by reference in the Registration Statement; and any “issuer free writing prospectus” as defined in Rule 433 under the Act relating to the Securities is hereinafter called an “Issuer Free Writing Prospectus”);
(b)For the purposes of this Agreement, the “Applicable Time” is 8:33 a.m. (Eastern time) on the date of this Agreement; the Pricing Prospectus as supplemented by the final term sheet prepared and filed pursuant to Section 5(a) hereof and each Issuer Free Writing Prospectus, taken together (collectively, the “Pricing Disclosure Package”) as of the Applicable Time, did not include any untrue statement of a material fact or omit 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; and each Issuer Free Writing Prospectus listed on Schedule II hereto does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus; provided, however, that this representation and warranty shall not apply to statements or omissions made in an Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein;
(c)The documents incorporated by reference in the Pricing Prospectus and the 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 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 information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein; and no such documents were filed with the Commission since the Commission's close of business on the business day immediately prior to the date of this Agreement and prior to the execution of this Agreement except as set forth on Schedule II hereto;
(d)The Registration Statement conforms and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, 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 information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein;
(e)The financial statements (including the related notes thereto) of each of the Company and its consolidated subsidiaries and the Partnership and its consolidated subsidiaries included or incorporated by reference in the Pricing Prospectus and the Prospectus comply in all material respects with the applicable requirements of the Act and
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the Exchange Act, as applicable, and present fairly the financial position of each of the Company and its consolidated subsidiaries and the Partnership and its consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis throughout the periods covered thereby, and any supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; and the other financial information included or incorporated by reference in the Pricing Prospectus and the Prospectus has been derived from the accounting records of the Company and its consolidated subsidiaries and the Partnership and its consolidated subsidiaries and presents fairly the information shown thereby; any pro forma financial information and the related notes thereto included or incorporated by reference in the Pricing Prospectus and the Prospectus have been prepared in accordance with the applicable requirements of the Act and the Exchange Act, as applicable, and the assumptions underlying such pro forma financial information are reasonable and are set forth in the Pricing Prospectus and the Prospectus; and the interactive data in eXtensible Business Reporting Language furnished by the Company to the Commission has been prepared in accordance with the Commission's rules and guidelines applicable thereto;
(f)Neither the Company nor any of its subsidiaries (including the Partnership) has sustained since the date of the latest financial statements included or incorporated by reference in the Pricing 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 Pricing Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there has not been any change in the capital stock of the Company or any of its subsidiaries (including the Partnership) (other than issuances of capital stock in connection with employee benefit 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 (other than (A) the Company paid $150,000,000 on its term loan and (B) the Company paid $120,000,000 on its line of credit) or any material adverse change in excess of $20,000,000, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company or the Partnership on any class of capital stock, or any material adverse change, 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 Pricing Prospectus (other than the dividend to be paid on the Company's Common Stock and equivalent units on August 29, 2012); and neither the Company nor any of its subsidiaries (including the Partnership) has entered into any transaction or agreement (whether or not in the ordinary course of business) that is material to the Company and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a whole;
(g)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 Pricing 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);
(h)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 Pricing Prospectus, 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; 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; 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 Pricing Prospectus, 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;
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(i)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; none of the outstanding shares of capital stock of the Company were issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company; the capital stock of the Company conforms in all material respects to the description thereof in the Pricing Prospectus; 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 for directors' qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims; and the Partnership has an authorized capitalization as set forth in the Pricing Prospectus, and all of the issued partnership interests of the Partnership have been duly and validly authorized and issued and are fully paid and non-assessable; and there are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any shares of capital stock of the Company or any of its subsidiaries other than those described in the Pricing Prospectus and the Prospectus;
(j)The Securities have been duly authorized and, when issued and delivered and paid for by the Underwriters pursuant to this Agreement, will be validly issued, fully paid and non-assessable; and the Securities will conform to the descriptions thereof in the Pricing Disclosure Package and the Prospectus; the certificates for the Securities are in valid and sufficient form; 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 Bylaws, or under any agreement by which the Company is bound; and, the shares of common stock of the Company (the “Common Shares”) issuable upon conversion of the Preferred Stock have been duly authorized by all necessary corporate action of the Company and reserved for issuance upon conversion of the Preferred Stock and, upon issuance thereof upon conversion of the Preferred Stock in accordance with the terms of the Company's Articles of Incorporation, will be validly issued, fully paid and nonassessable;
(k)None of the transactions contemplated by this Agreement (including, without limitation, the use of the proceeds from the sale of the Securities) will violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated thereunder, including, without limitation, Regulations G, T, U, and X of the Board of Governors of the Federal Reserve System;
(l)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 Partnership or the Company in connection with the offering of the Securities;
(m)The issue and sale of the Securities, the issuance of the Common Shares upon conversion thereof, and the compliance by the Company and the Partnership with all of the provisions of the Securities, this Agreement and the consummation of the transactions herein and therein 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, 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, nor will such action result in any violation of the provisions of the Articles of Incorporation or Bylaws of the Company, the Certificate of Limited Partnership or partnership agreement of the Partnership or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries (including the Partnership) or any of their properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Securities or the consummation by the Company and the Partnership of the transactions contemplated by this Agreement, except such as have been, or will have been prior to the Time of Delivery, obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters;
(n)Each of the Company and the Partnership has full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and all action required to be taken for the due and proper authorization, execution and delivery by each of them of this Agreement and the consummation by each of them of the transactions contemplated hereby has been duly and validly taken;
(o)This Agreement has been duly authorized, executed and delivered by the Company and the Partnership;
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(p)Neither the Company nor any of its subsidiaries (including the Partnership) is in violation of its Articles of Incorporation, Bylaws, 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;
(q)The statements set forth in the Pricing Prospectus and Prospectus under the caption “Description of the Series 7 Preferred Shares” and “Description of Preferred Stock of Regency Centers Corporation”, insofar as they purport to constitute a summary of the terms of the Securities, and under the captions “Certain Material Federal Income Tax Considerations” and “Additional Material Federal Income Tax Considerations”, insofar as they purport to describe the provisions of the laws and documents referred to therein, and under the captions “Plan of Distribution” and “Underwriting”, insofar as they purport to describe the documents referred to therein, are accurate and complete in all material respects;
(r)Other than as set forth in the Pricing Prospectus, 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 Partnership) (“Material Adverse Effect”); and, to the best of the Partnership's knowledge and the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(s)The Company has qualified to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Internal Revenue Code (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 are such that the Company is in a position under present law to so qualify for the current fiscal year and in the future;
(t)The Company and its subsidiaries (including the Partnership) have filed all foreign, federal, state and local tax returns that are required to be filed (taking into account any applicable extensions), except where the failure so to file would not, individually or in the aggregate, have a Material Adverse Effect, and have paid all taxes required to by paid by them and any assessment, fine or penalty levied against any of them, to the extent that any of the foregoing is due and payable, except for any such tax, assessment, fine or penalty that is currently being contested in good faith by appropriate actions and for which appropriate reserves have been included in the applicable financial statements and except for such taxes, assessments, fines or penalties the nonpayment of which would not, individually or in the aggregate, have a Material Adverse Effect;
(u)The Company and its subsidiaries (including the Partnership) possess all licenses, certificates, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Pricing Prospectus and Prospectus, except where the failure to possess or make the same would not, individually or in the aggregate, have a Material Adverse Effect; and except as described in the Pricing Prospectus and Prospectus, neither the Company nor any of its subsidiaries (including the Partnership) has received notice of any revocation or modification of any such license, certificate, permit or authorization or has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course;
(v)No labor disturbance by or dispute with employees of the Company and its subsidiaries (including the Partnership) exists or, to the knowledge of the Company or the Partnership, is contemplated or threatened, and neither the Company nor the Partnership is aware of any existing or imminent labor disturbance by, or dispute with, the employees of any of its or its subsidiaries' principal suppliers, contractors or customers, except as would not have a Material Adverse Effect;
(w)(i) Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for which the Company or any member of its “Controlled Group” (defined as any organization which is a member of a controlled group of corporations within the meaning of Section 414 of the Code) would have any liability (each, a “Plan”) has been maintained in compliance with its terms and the requirements
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of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code, except for noncompliance that could not reasonably be expected to result in material liability to the Company or its subsidiaries (including the Partnership); (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan excluding transactions effected pursuant to a statutory or administrative exemption that could reasonably be expected to result in a material liability to the Company or its subsidiaries (including the Partnership); (iii) for each Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, the minimum funding standard of Section 412 of the Code or Section 302 of ERISA, as applicable, has been satisfied (without taking into account any waiver thereof or extension of any amortization period) and is reasonably expected to be satisfied in the future (without taking into account any waiver thereof or extension of any amortization period); (iv) the fair market value of the assets of each Plan exceeds the present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan); (v) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur that either has resulted, or could reasonably be expected to result, in material liability to the Company or its subsidiaries (including the Partnership); (vi) neither the Company nor any member of the Controlled Group has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guaranty Corporation (the “PBGC”), in the ordinary course and without default) in respect of a Plan (including a “multiemployer plan”, within the meaning of Section 4001(a)(3) of ERISA); and (vii) there is no pending audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the PBGC or any other governmental agency or any foreign regulatory agency with respect to any Plan that could reasonably be expected to result in material liability to the Company or its subsidiaries (including the Partnership). None of the following events has occurred or is reasonably likely to occur: (x) a material increase in the aggregate amount of contributions required to be made to all Plans by the Company or its subsidiaries (including the Partnership) in the current fiscal year of the Company and its subsidiaries (including the Partnership) compared to the amount of such contributions made in the Company and its subsidiaries' (including the Partnership's) most recently completed fiscal year; or (y) a material increase in the Company and its subsidiaries' (including the Partnership's) “accumulated post-retirement benefit obligations” (within the meaning of Statement of Financial Accounting Standards 106) compared to the amount of such obligations in the Company and its subsidiaries' (including the Partnership's) most recently completed fiscal year;
(x)The Company and its subsidiaries (including the Partnership) own or possess adequate rights to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) necessary for the conduct of their respective businesses as currently conducted and as proposed to be conducted, and the conduct of their respective businesses will not conflict in any material respect with any such rights of others. The Company and its subsidiaries (including the Partnership) have not received any notice of any claim of infringement, misappropriation or conflict with any such rights of others in connection with its patents, patent rights, licenses, inventions, trademarks, service marks, trade names, copyrights and know-how, which could reasonably be expected to result in a Material Adverse Effect;
(y)No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries (including the Partnership), on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company or any of its subsidiaries (including the Partnership), on the other, that is required by the Act to be described in the Pricing Prospectus and Prospectus and is not so described;
(z)(i) The Company and its subsidiaries (including the Partnership) (a) are, and at all prior times were, in compliance with any and all applicable federal, state, local and foreign laws, rules, regulations, requirements, decisions, judgments, decrees, orders and the common law relating to pollution or the protection of the environment, natural resources or human health or safety, including those relating to the generation, storage, treatment, use, handling, transportation, Release (as defined below) or threat of Release of Hazardous Materials (as defined below) (collectively, “Environmental Laws”), (b) have received and are in compliance with all permits, licenses, certificates or other authorizations or approvals required of them under applicable Environmental Laws to conduct their respective businesses, (c) have not received notice of any actual or potential liability under or relating to, or actual or potential violation of, any Environmental Laws, including for the investigation or remediation of any Release or threat of Release of Hazardous Materials, and have no knowledge of any event or condition that would reasonably be expected to result in any such notice, (d) are not conducting or paying for, in whole or in part, any investigation, remediation or other corrective action pursuant to any Environmental Law at any location, and (e) are not a party to any order, decree or agreement that imposes any obligation or liability under any Environmental Law, and (ii) there are no costs or liabilities associated with Environmental Laws of or relating to the Company and its subsidiaries (including the Partnership), except in the case of each of (i) and (ii) above, for any such matter, as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) except as described in the Pricing Prospectus and Prospectus, (a) there are no proceedings that are pending, or
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that are known to be contemplated, against the Company and its subsidiaries (including the Partnership) under any Environmental Laws in which a governmental entity is also a party, other than such proceedings regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed, (b) the Company and its subsidiaries (including the Partnership) are not aware of any facts or issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws, including the Release or threat of Release of Hazardous Materials, that could reasonably be expected to have a material effect on the capital expenditures, earnings or competitive position of the Company and its subsidiaries (including the Partnership), and (c) none of the Company and its subsidiaries (including the Partnership) anticipates material capital expenditures relating to any Environmental Laws;
(aa)There has been no storage, generation, transportation, use, handling, treatment, Release or threat of Release of Hazardous Materials by, relating to or caused by the Company and its subsidiaries (including the Partnership) (or, to the knowledge of the Company and its subsidiaries (including the Partnership), any other entity (including any predecessor) for whose acts or omissions the Company and its subsidiaries (including the Partnership) is or could reasonably be expected to be liable) at, on, under or from any property or facility now or previously owned, operated or leased by the Company and its subsidiaries (including the Partnership), or at, on, under or from any other property or facility, in violation of any Environmental Laws or in a manner or amount or to a location that could reasonably be expected to result in any liability of the Company and its subsidiaries (including the Partnership) under any Environmental Law, except for any violation or liability which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. “Hazardous Materials” means any material, chemical, substance, waste, pollutant, contaminant, compound, mixture, or constituent thereof, in any form or amount, including petroleum (including crude oil or any fraction thereof) and petroleum products, natural gas liquids, asbestos and asbestos containing materials, naturally occurring radioactive materials, brine, and drilling mud, regulated or which can give rise to liability under any Environmental Law. “Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, or migrating in, into or through the environment, or in, into from or through any building or structure;
(bb) Neither the Partnership nor the Company 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 United States Investment Company Act of 1940, as amended (the “Investment Company Act”);
(cc) KPMG LLP, who have certified certain financial statements of the Partnership and its subsidiaries and the Company and its subsidiaries, are independent public accountants as required by the Act and the rules and regulations of the Commission thereunder;
(dd) The Company and its subsidiaries (including the Partnership) maintain an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by the Company and the Partnership in reports that they file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission's rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company or the Partnership's respective management as appropriate to allow timely decisions regarding required disclosure. The Company and its subsidiaries (including the Partnership) have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act; \
(ee) The Company and its subsidiaries (including the Partnership) maintain systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles, including, but not limited to internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management's general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) the interactive data in eXtensible Business Reporting Language furnished by the Company to the Commission has been prepared in accordance with the Commission's rules and guidelines applicable thereto. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no material weaknesses in the Company's or the Partnership's internal controls;
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(ff) The Company and its subsidiaries (including the Partnership) have insurance covering their respective properties, operations, personnel and businesses, including business interruption insurance, which insurance is in amounts and insures against such losses and risks as are adequate to protect the Company and its subsidiaries (including the Partnership) and their respective businesses; and neither the Company nor any of its subsidiaries (including the Partnership) has (i) received notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance or (ii) any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage at reasonable cost from similar insurers as may be necessary to continue its business;
(gg) Neither the Company nor any of its subsidiaries (including the Partnership) nor, to the knowledge of the Company or the Partnership, any director, officer, agent, employee, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries (including the Partnership) is aware of or has taken any action, directly or indirectly, that has resulted or would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to pay or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, and the Company and its subsidiaries (including the Partnership) have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith;
(hh) The operations of the Company and its subsidiaries (including the Partnership) are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no 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 (including the Partnership) with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened;
(ii) Neither the Company nor any of its subsidiaries (including the Partnership) nor, to the knowledge of the Company or the Partnership, any director, officer, agent, employee, affiliate or representative of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Partnership will not, directly or indirectly, use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC;
(jj) No subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution on such subsidiary's capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary's properties or assets to the Company or any other subsidiary of the Company;
(kk) Neither the Company nor any of its subsidiaries (including the Partnership) is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against the Company or any of its subsidiaries (including the Partnership) or any Underwriter for a brokerage commission, finder's fee or like payment in connection with the offering and sale of the Securities;
(ll) No person has the right to require the Partnership or Company or any of its subsidiaries to register any securities for sale under the Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Securities;
(mm) The statements and financial information (including the assumptions described therein) included in the Pricing Prospectus and Prospectus or incorporated by reference therein from the Partnership's and the Company's Annual Report on Form 10-K for the year ended December 31, 2011 and Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2012 (in each case under the heading “Management's Discussion and Analysis of Financial Condition and Results of Operations”) (collectively, the “Projections”) (i) are within the coverage of the safe harbor for forward-
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looking statements set forth in Section 27A of the Act, Rule 175(b) under the Act or Rule 3b-6 under the Exchange Act, as applicable, (ii) were made by the Company and the Partnership with a reasonable basis and in good faith and reflect the Partnership's and the Company's good faith best estimate of the matters described therein, and (iii) have been prepared in accordance with Item 10 of Regulation S-K under the Act; the assumptions used in the preparation of the Projections are reasonable; and none of the Partnership, the Company or the Company's subsidiaries are aware of any business, economic or industry developments inconsistent with the assumptions underlying the Projections;
(nn) Nothing has come to the attention of the Company or the Partnership that has caused the Company or the Partnership to believe that the statistical and market-related data included in the Pricing Prospectus and Prospectus is not based on or derived from sources that are reliable and accurate in all material respects;
(oo) There is and has been no failure on the part of the Company or, to the knowledge of the Company, any of the Company's directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications;
(pp) At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest time thereafter that the Company or any offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities and at the date hereof, the Company was not and is not an “ineligible issuer,” and is a well-known seasoned issuer, in each case as defined in Rule 405 under the Act; and
(qq) The Company will have applied to have the Securities and the Common Shares issuable upon conversion thereof approved for listing on the New York Stock Exchange, Inc. (the “NYSE”) prior to the Time of Delivery; the Company is in compliance with the rules and regulations of the NYSE, including without limitation, the requirements for continued listing of the Common Shares on the NYSE, and there are no actions, suits or proceedings pending, threatened or, to the Company's knowledge, contemplated, and the Company has not received any notice from the NYSE, regarding the revocation of such or otherwise regarding the delisting of the Common Shares from the NYSE.
2.Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at a purchase price of $24.2125 per share of Preferred Stock (the “Purchase Price”), the amount of the Securities set forth opposite such Underwriter's name in Schedule I hereto.
3.Upon the authorization by the Representatives of the release of the Securities thereof, the several Underwriters propose to offer the Securities for sale upon the terms and conditions set forth in the Prospectus.
4.The Securities to be purchased by each Underwriter hereunder shall have such liquidation preference and be registered in such names as the Representatives may request upon at least forty-eight hours' prior notice to the Company, shall be delivered by or on behalf of the Company to the Representatives for the account of such Underwriter, against payment by such Underwriter or on its behalf of the purchase price therefor by wire transfer of Federal (same-day) funds to the account specified by the Company to the Representatives at least forty-eight hours in advance (unless postponed in accordance with the provisions of Section 10) or at such other place and time and date as the Representatives and the Company may agree upon in writing, such time and date being herein called the “Time of Delivery”.
5. The Company and the Partnership jointly and severally agree with each of the Underwriters:
(a)To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 424(b); to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Time of Delivery which shall be disapproved by the Representatives promptly after reasonable notice thereof; to advise the Representatives promptly of any such amendment or supplement after such Time of Delivery and furnish the Representatives with copies thereof; to prepare a final term sheet, containing solely a description of the Securities, in a form approved by the Representatives and to file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule; to file promptly all other material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company or the Partnership with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering or sale of such Securities, and during such same period to advise the Representatives,
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promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed with the Commission, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus relating to the Securities, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order;
(b)Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Securities; provided, that in connection therewith neither the Company nor the Partnership shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c)Prior to 10:00 p.m., New York City time, on the New York Business Day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters in New York City with copies of the Prospectus in such quantities as the Representatives may reasonably request and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time in connection with the offering or sale of the Securities and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, to notify the Representatives and upon their request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d)To make generally available to its securityholders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);
(e)During a period of 30 days from the date of the Prospectus, not to offer, sell, contract to sell or otherwise dispose of, except as provided hereunder, any preferred securities of the Company or the Partnership that are substantially similar to the Securities, without the prior written consent of the Representatives;
(f)Not to be or become, at any time prior to the expiration of three years after the Time of Delivery, an open-end investment company, unit investment trust, closed-end investment company or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act;
(g)During a period of five years from the date of the Prospectus, to furnish to the Representatives copies of all reports or other communications (financial or other) furnished to stockholders of the Company or partners of the Partnership, and to deliver to the Representatives (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any securities exchange on which the Securities or any class of securities of the Company or Partnership is listed; and (ii) such additional information concerning the business and financial condition of the Company or the Partnership as the Representatives may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its stockholders generally or to the Commission or to the extent the accounts of the Partnership and its subsidiaries are consolidated in reports furnished to its partners generally or to the Commission);
(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 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;
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(i)To use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Pricing Prospectus under the caption “Use of Proceeds”;
(j)If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 111 under the Act; and
(k)The Company will use its commercially reasonable efforts to cause the Securities to be listed and admitted or authorized for trading on the NYSE.
6.The Company and the Partnership jointly and severally covenant and agree that:
(a)other than the final term sheet prepared and filed pursuant to Section 5(a) hereof, without the prior consent of the Representatives, the Company has not made and will not make any offer relating to the Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Act;
(b)the Company has complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending; and
(c)if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company and the Partnership will give prompt notice thereof to the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter through the Representatives expressly for use therein.
Each Underwriter represents and agrees that, without the prior consent of the Company, other than one or more term sheets relating to the Securities containing customary information and conveyed to purchasers of Securities, it has not made and will not make any offer relating to the Securities that would constitute a free writing prospectus and any such free writing prospectus the use of which has been consented to by the Company and the Representatives (including the final term sheet prepared and filed pursuant to Section 5(a) hereof) is listed on Schedule II hereto.
7.The Company and the Partnership jointly and severally covenant and agree with the several Underwriters that the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company's and the Partnership's counsel and accountants in connection with the registration of the Securities under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and any amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum, closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Securities; (iii) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section 5(b) hereof, including the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky and legal investment surveys; (iv) any fees charged by any nationally recognized statistical rating organization for rating the Securities; (v) any filing fees incident to, and the reasonable fees and disbursements of counsel for the Underwriters in connection with, any required review by the Financial Industry Regulatory Authority of the terms of the sale of the Securities; (vi) the preparation, issuance and delivery of the certificates for the Securities to the Underwriters, including any stock or other transfer taxes and any stamp or other duties payable upon the sale, issuance or delivery of the Securities to the Underwriters; (vii) the fees payable in connection with listing the Securities and Common Shares issuable upon conversion thereof on the NYSE; (viii) the fees and expenses of any transfer agent or registrar for the Securities; and (ix) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section. It is understood, however, that, except as provided in this Section, and Sections 9 and 12 hereof, the Underwriters 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.
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8.The obligations of the Underwriters shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and the Partnership are, at and as of the Time of Delivery of the Securities, true and correct, the condition that the Company and the Partnership shall have performed all of their respective obligations hereunder theretofore to be performed, and the following additional conditions:
(a)The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; the final term sheet contemplated by Section 5(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time period prescribed for such filings by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives' reasonable satisfaction;
(b)Sullivan & Cromwell LLP, counsel for the Underwriters, shall have furnished to the Representatives an opinion and 10b-5 statement, dated the Time of Delivery, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c)Foley & Lardner LLP, counsel for the Company, shall have furnished to the Representatives an opinion and 10b‑5 statement, dated the Time of Delivery, in form and substance reasonably satisfactory to the Representatives, in substantially the form set forth in Annex A hereto;
(d)On the date of the Prospectus at a time prior to the execution of this Agreement and at the Time of Delivery, the independent accountants of the Company and the Partnership, who have certified the financial statements of the Company and its subsidiaries and the Partnership and its subsidiaries included or incorporated by reference in the Registration Statement, shall have furnished to the Representatives a letter, dated the effective date of the Registration Statement or the date of the most recent report filed with the Commission containing financial statements and incorporated by reference in the Registration Statement, if the date of such report is later than such effective date, and a letter dated such Time of Delivery, respectively, to the effect customarily provided to underwriters, and with respect to such letter dated such Time of Delivery, as to such other matters as the Representatives may reasonably request and in form and substance satisfactory to the Representatives;
(e) (i) Neither the Company nor any of its subsidiaries (including the Partnership) shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any 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 Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock, mortgage loans payable or long-term debt of the Company or any of its subsidiaries (including the Partnership) or in the partners' capital, mortgage loans payable or long-term debt of the Partnership or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, partners' capital, stockholders' equity or results of operations of the Company and its subsidiaries (including the Partnership) otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in Clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in this Agreement and in the Prospectus;
(f)On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Partnership's or the Company's debt securities or preferred stock by any “nationally recognized statistical rating organization”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Partnership's or the Company's debt securities or preferred stock;
(g)On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE or the NASDAQ Global Market; (ii) a suspension or
12
material limitation in trading in the Company's securities on any stock exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war; or (v) the occurrence of any other calamity or crisis or any change, in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in Clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering, sale or the delivery of the Securities on the terms and in the manner contemplated in the Pricing Disclosure Package, the Prospectus or this Agreement;
(h)No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Time of Delivery, prevent the issuance or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Time of Delivery, prevent the issuance or sale of the Securities;
(i)The Company shall have complied with the provisions of Section 5 hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement;
(j)The Company shall have filed the Articles of Amendment designating the preferences, rights and limitations of the Preferred Stock, and satisfactory evidence of such action shall have been provided to the Representatives;
(k)The Company and the Partnership shall have furnished or caused to be furnished to the Representatives at the Time of Delivery certificates of officers of the Company and the Partnership satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company and the Partnership herein at and as of such Time of Delivery, as to the performance by the Company and the Partnership of all of their obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in subsections (a) and (e) of this Section and as to such other matters as the Representatives may reasonably request; and
(l)The Representatives shall have received on and as of the Time of Delivery, satisfactory evidence of the good standing of the Company and the Partnership in their respective jurisdictions of organization and their good standing as foreign entities in such other jurisdictions as the Representatives may reasonably request, in each case in writing or any standard form of telecommunication from the appropriate governmental authorities of such jurisdictions.
9.(a) The Company and the Partnership jointly and severally will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any amendment or supplement thereto, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act 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 will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company and the Partnership shall 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 an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use therein.
(b) Each Underwriter, severally and not jointly, will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, 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, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with
13
investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Partnership on the one hand and the Underwriters on the other from the offering of the Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Partnership or the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Partnership or the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company or the Partnership bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Partnership on the one hand or the Underwriters on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, the Partnership and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. 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. The obligations of the Underwriters in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company and the Partnership under this Section 9 shall be in addition to any liability which the Company or the Partnership may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Act.
10.(a) If any Underwriter shall default in its obligation to purchase the Securities which it has agreed to purchase
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hereunder, the Representatives may in their discretion arrange for the Representatives or another party or other parties to purchase such Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter the Representatives do not arrange for the purchase of such Securities, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to the Representatives to purchase such Securities on such terms. In the event that, within the respective prescribed period, the Representatives notify the Company that they have so arranged for the purchase of such Securities, or the Company notifies the Representatives that it has so arranged for the purchase of such Securities, the Representatives or the Company shall have the right to postpone the Time of Delivery for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in the opinion of the Representatives may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate number of shares of such Securities which remains unpurchased does not exceed one-eleventh of the aggregate number of shares of the Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the number of shares of all Securities which such Underwriter agreed to purchase hereunder and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of shares of Securities which such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate number of shares of Securities which remains unpurchased exceeds one-eleventh of the aggregate number of shares of all the Securities, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase the shares of Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
11.The respective indemnities, agreements, representations, warranties and other statements of the Company, the Partnership and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company or the Partnership, or any officer or director or controlling person of the Company or the Partnership, and shall survive delivery of and payment for the Securities.
12.If this Agreement shall be terminated pursuant to Section 8(g) or 10 hereof, the Company and the Partnership shall not then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but if for any other reason Securities are not delivered by or on behalf of the Company as provided herein, the Company or the Partnership will reimburse the Underwriters through the Representatives for all out-of-pocket expenses approved in writing by the Representatives, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Securities, but the Company and the Partnership shall then be under no further liability to any Underwriter except as provided in Sections 7 and 9 hereof.
13.In all dealings hereunder, the Representatives shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by such Representatives jointly or by any of the Representatives.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex, facsimile or e-mail transmission to you as the representatives at J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179, Attention: Investment Grade Syndicate Desk - 3rd floor, Facsimile: 212-834-6081; and at Wells Fargo Securities, LLC, 301 S. College Street, 6th Floor, Charlotte, North Carolina 28288, Attention: Transaction Management, Facsimile: 704-383-9165; and if to the Company or the Partnership shall be delivered or sent by mail, telex, facsimile or e-mail transmission to the address of the Company and the Partnership set forth in the Registration Statement: Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by mail, telex, facsimile or e-mail transmission to such Underwriter at its address set forth in its Underwriters' Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the Company and the Partnership by the Representatives upon request. Any
15
such statements, requests, notices or agreements shall take effect upon receipt thereof.
14.This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and the Partnership and, to the extent provided in Sections 9 and 11 hereof, the officers and directors of the Company and the Partnership and each person who controls the Company or the Partnership or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
15.Time shall be of the essence of this Agreement. As used herein, “business day” shall mean any day when the Commission's office in Washington, D.C. is open for business.
16.Each of the Company and the Partnership acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm's-length commercial transaction between the Company and the Partnership, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company or the Partnership, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the Company and the Partnership with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or the Partnership on other matters) or any other obligation to the Company or the Partnership except the obligations expressly set forth in this Agreement and (iv) the Company and the Partnership have consulted their own legal and financial advisors to the extent they have deemed appropriate. The Company and the Partnership agree that they will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company or the Partnership, in connection with such transaction or the process leading thereto.
17.This Agreement supersedes all prior agreements and understandings (whether written or oral) among the Company, the Partnership and the Underwriters, or any of them, with respect to the subject matter hereof.
18.This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
19.The Company, the Partnership and each of the Underwriters hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
20.This Agreement may be executed by any one or more of the parties hereto and thereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument.
21.No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
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If the foregoing is in accordance with your understanding, please sign and return to us five counterparts hereof.
Very truly yours,
Regency Centers Corporation | ||
By | ||
Name: | ||
Title: | ||
Regency Centers, L.P.
By: | Regency Centers Corporation, general partner | |
By | ||
Name: | ||
Title: | ||
Accepted as of the date hereof on behalf of each of the Underwriters:
J.P. Morgan Securities LLC | |
By: | |
Name: | |
Title: | |
Wells Fargo Securities, LLC | |
By: | |
Name: | |
Title: | |
17
SCHEDULE I
Underwriter | Number of Shares to be Purchased | |
J.P. Morgan Securities LLC.................................................................................................. | 1,185,000 | |
Wells Fargo Securities, LLC................................................................................................. | 1,185,000 | |
RBC Capital Markets, LLC.................................................................................................. | 600,000 | |
Cabrera Capital Markets, LLC.............................................................................................. | 15,000 | |
PNC Capital Markets LLC.................................................................................................... | 15,000 | |
Total............................................................................................................... | 3,000,000 | |
SCHEDULE II
(a) Regency Centers Corporation Pricing Term Sheet filed with the Commission by the Company on August 14, 2012 pursuant to Rule 433 under the Act.
(b) Additional Documents Incorporated by Reference:
None.
Exhibit A
REGENCY CENTERS CORPORATION
Subsidiaries
Entity | Jurisdiction | Owner(s) | Nature of Interest(1) | % of Ownership | |
Regency Centers, L.P. | Delaware | Regency Centers Corporation Outside Investors | General Partner Limited Partners | 99.0% 1.0% | |
Columbia Cameron Village SPE, LLC | Delaware | Regency Centers, L.P. Columbia Perfco Partners, L.P. | Managing Member Member | 30% 70% | |
Columbia Cameron Village, LLC | Delaware | Columbia Cameron Village SPE, LLC | Member | 100 | % |
Columbia Regency Retail Partners, LLC | Delaware | Regency Centers, L.P. Columbia Perfco Partners, L.P. | Managing Member Member | 20% 80% | |
Columbia Retail Baker Hill, LLC | Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % |
Columbia Retail Deer Grove, LLC | Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % |
Columbia Retail Deer Grove Center, LLC | Delaware | Columbia Retail Deer Grove, LLC | Member | 100 | % |
Columbia Retail Dulles, LLC | Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % |
Columbia Retail Geneva Crossing, LLC | Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % |
Columbia Retail Shorewood Crossing, LLC | Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % |
Columbia Retail Special Member (GLP), LLC | Delaware | Columbia Perfco, L.P. Regency Centers, L.P. | Member Managing Member | 80% 20% | |
Columbia Retail Stearns Crossing, LLC | Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % |
Columbia Retail Texas 3, LLC | Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % |
Columbia Retail Sweetwater Plaza, LP | Delaware | Columbia Retail Texas 3, LLC Columbia Regency Retail Partners, LLC | General Partner Limited Partner | 1% 99% | |
Columbia Retail Washington 1, LLC | Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % |
Columbia Cascade Plaza, LLC | Delaware | Columbia Retail Washington 1, LLC | Member | 100 | % |
Columbia Julington Village, LLC | Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % |
Columbia Palm Valley Marketplace, LLC | Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % |
Columbia Park Plaza Member, LLC | Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % |
Columbia Park Plaza, LLC | Delaware | Columbia Park Plaza Member, LLC | Member | 100 | % |
Columbia Regency Partners II, LLC | Delaware | Regency Centers, L.P. Columbia Perfco Partners, L.P. | Managing Member Member | 20% 80% | |
Columbia Cochran Commons, LLC | Delaware | Columbia Regency Partners II, LLC | Member | 100 | % |
Hollymead Town Center, LLC | Delaware | Columbia Regency Partners II, LLC | Member | 100 | % |
Columbia II Hollymead, LLC | Delaware | Hollymead Town Center, LLC | Member | 100 | % |
Columbia II Johns Creek, LLC | Delaware | Columbia Regency Partners II, LLC | Member | 100 | % |
Columbia Lorton Station Marketplace Member, LLC | Delaware | Columbia Regency Partners II, LLC | Member | 100 | % |
Columbia Lorton Station Marketplace, LLC | Delaware | Columbia Lorton Station Marketplace Member, LLC | Member | 100 | % |
(1) Unless otherwise noted, the sole member of all single member limited liability companies is also the managing member or manager of the limited liability company.
Entity | Jurisdiction | Owner(s) | Nature of Interest(1) | % of Ownership | |
Columbia Lorton Station Town Center, LLC | Delaware | Columbia Regency Partners II, LLC | Member | 100 | % |
Columbia II Marina Shores, LLC | Delaware | Columbia Regency Partners II, LLC | Member | 100 | % |
Columbia Plantation Plaza Member, LLC | Delaware | Columbia Regency Partners II, LLC | Member | 100 | % |
Columbia Plantation Plaza, LLC | Delaware | Columbia Plantation Plaza Member, LLC | Member | 100 | % |
Columbia Rockridge Center, LLC | Delaware | Columbia Regency Partners II, LLC | Member | 100 | % |
Columbia Shorewood Crossing Phase 2 Member, LLC | Delaware | Columbia Regency Partners II, LLC | Member | 100 | % |
Columbia Shorewood Crossing Phase 2, LLC | Delaware | Columbia Shorewood Crossing Phase 2 Member, LLC | Member | 100 | % |
Columbia Shorewood Crossing Phase 3, LLC | Delaware | Columbia Regency Partners II, LLC | Member | 100 | % |
Signal Hill Two, LLC | Delaware | Columbia Regency Partners II, LLC | Member | 100 | % |
Columbia II Signal Hill, LLC | Delaware | Signal Hill Two, LLC | Member | 100 | % |
Columbia Speedway Plaza Member, LLC | Delaware | Columbia Regency Partners II, LLC | Member | 100 | % |
Columbia Speedway Plaza, LLC | Delaware | Columbia Speedway Plaza Member, LLC | Member | 100 | % |
Columbia Sutton Square, LLC | Delaware | Columbia Regency Partners II, LLC | Member | 100 | % |
Columbia II Highland Knolls, LLC | Delaware | Columbia Regency Partners II, LLC | Member | 100 | % |
Columbia II Holding, LLC | Delaware | Columbia Regency Partners II, LLC | Member | 100 | % |
Columbia II Island Crossing, LLC | Delaware | Columbia II Holding, LLC | Member | 100 | % |
Columbia II King Plaza, LLC | Delaware | Columbia II Holding, LLC | Member | 100 | % |
Columbia II Lost Mountain, LLC | Delaware | Columbia II Holding, LLC | Member | 100 | % |
Columbia II Raley's Center, LLC | Delaware | Columbia II Holding, LLC | Member | 100 | % |
Columbia II Surfside Beach Commons, LLC | Delaware | Columbia II Holding, LLC | Member | 100 | % |
GRI-Regency, LLC | Delaware | Global Retail Investors, LLC Regency Centers, L.P. | Member Managing Member | 60% 40% | |
FW PA-Mercer Square, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
FW PA-Newtown Square, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
FW PA-Warwick Plaza, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
MCW-RC SC-Merchant's, LLC (fka MCW-RC South Carolina, LLC) | Delaware | GRI-Regency, LLC | Member | 100 | % |
MCW-RC SC-Merchant's Village Member, LLC | Delaware | MCW-RC SC-Merchant's, LLC | Member | 100 | % |
MCW-RC SC-Merchant's Village, LLC | Delaware | MCW-RC SC-Merchant's Village Member, LLC | Member | 100 | % |
FW CA-Brea Marketplace Member, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
FW CA-Brea Marketplace, LLC | Delaware | FW CA-Brea Marketplace Member, LLC | Member | 100 | % |
U.S. Retail Partners Holding, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
U.S. Retail Partners Member, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
(1) Unless otherwise noted, the sole member of all single member limited liability companies is also the managing member or manager of the limited liability company.
Entity | Jurisdiction | Owner(s) | Nature of Interest(1) | % of Ownership | |
U.S. Retail Partners, LLC | Delaware | U.S. Retail Partners Holding, LLC U.S. Retail Partners Member, LLC | Managing Member Member | 1% 99% | |
FW CO-Arapahoe Village, LLC | Delaware | U.S. Retail Partners | Member | 100 | % |
FW CO-Cherrywood Square, LLC | Delaware | U.S. Retail Partners | Member | 100 | % |
FW CO-Ralston Square, LLC | Delaware | U.S. Retail Partners | Member | 100 | % |
FW MN-Colonial Square, LLC | Delaware | U.S. Retail Partners | Member | 100 | % |
USRP I Holding, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
USRP I Member, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
USRP I, LLC | Delaware | USRP I Holding, LLC USRP I Member, LLC | Managing Member Member | 1% 99% | |
FW NJ-Plaza Square, LLC | Delaware | USRP I | Member | 100 | % |
FW VA-Greenbriar Town Center, LLC | Delaware | USRP I | Member | 100 | % |
FW VA-Festival at Manchester, LLC | Delaware | USRP I | Member | 100 | % |
FW-Reg II Holdings, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
FW CA-Auburn Village, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW CA-Bay Hill Shopping Center, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW CA-Five Points Shopping Center, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW CA-Mariposa Gardens Shopping Center, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW CA-Navajo Shopping Center, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW CA-Point Loma Plaza, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW CA-Rancho San Diego Village, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW CA-Silverado Plaza, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW CA-Snell & Branham Plaza, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW CA-Stanford Ranch Village, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW CA-Twin Oaks Shopping Center, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW CA-Ygnacio Plaza, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW CT-Corbins Corner Shopping Center, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW DC-Spring Valley Shopping Center, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW The Oaks Holding, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
FW IL-The Oaks Shopping Center, LLC | Delaware | FW The Oaks Holding, LLC | Member | 100 | % |
FW IL-Brentwood Commons, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW IL-Riverside/Rivers Edge, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW IL-Riverview Plaza, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW IL-Stonebrook Plaza, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
USRP Willow East, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
(1) Unless otherwise noted, the sole member of all single member limited liability companies is also the managing member or manager of the limited liability company.
Entity | Jurisdiction | Owner(s) | Nature of Interest(1) | % of Ownership | |
USRP Willow West, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
Parkville Shopping Center, LLC | Maryland | FW-Reg II Holdings, LLC | Member | 100 | % |
FW-Reg II Holding Company Two, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
FW CA-Granada Village, LLC | Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % |
FW CA-Laguna Niguel Plaza, LLC | Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % |
FW CA-Pleasant Hill Shopping Center, LLC | Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % |
FW IL-Civic Center Plaza, LLC | Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % |
FW IL-McHenry Commons Shopping Center, LLC | Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % |
FW IN-Willow Lake West, LLC | Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % |
FW NJ-Westmont Shopping Center, LLC | Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % |
FW NC-Shoppes of Kildaire, LLC | Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % |
FW OR-Greenway Town Center, LLC | Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % |
FW WI Racine Centre, LLC | Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % |
USRP LP, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
USRP GP, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
US Retail Partners Limited Partnership | Delaware | USRP GP, LLC USRP LP, LLC Preferred Partners | General Partner Limited Partner Limited Partners | 1% 99% profit sharing | |
FW MD Woodmoor Borrower, LLC | Delaware | US Retail Partners Limited Partnership | Member | 100 | % |
Enterprise Associates | Maryland | USRP GP, LLC US Retail Partners Limited Partnership | General Partner Limited Partner | 1% 99% | |
FW Bowie Plaza GP, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
Capitol Place I Investment Limited Partnership | Maryland | FW Bowie Plaza GP, LLC Eastern Shopping Centers I, LLC | General Partner Limited Partner | 1% 99% | |
FW Elkridge Corners GP, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
L and M Development Company Limited Partnership | Maryland | FW Elkridge Corners GP, LLC Eastern Shopping Centers I, LLC | General Partner Limited Partner | 1% 99% | |
FW Woodholm GP, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
Woodholme Properties Limited Partnership | Maryland | FW Woodholm GP, LLC Eastern Shopping Centers I, LLC | General Partner Limited Partner | 1% 99% | |
FW Woodholme Borrower, LLC | Delaware | Woodholme Properties Limited Partnership | Member | 100 | % |
FW Southside Marketplace GP, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
Southside Marketplace Limited Partnership | Maryland | FW Southside Marketplace GP, LLC Eastern Shopping Centers I, LLC | General Partner Limited Partner | 1% 99% | |
FW Southside Marketplace Borrower, LLC | Delaware | Southside Marketplace Limited Partnership | Member | 100 | % |
FW Valley Centre GP, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
Greenspring Associates Limited Partnership | Maryland | FW Valley Centre GP, LLC Eastern Shopping Centers I, LLC | General Partner Limited Partner | 1% 99% | |
(1) Unless otherwise noted, the sole member of all single member limited liability companies is also the managing member or manager of the limited liability company.
Entity | Jurisdiction | Owner(s) | Nature of Interest(1) | % of Ownership | |
FW MD-Greenspring Borrower, LLC | Delaware | Greenspring Associates Limited Partnership | Member | 100 | % |
Eastern Shopping Centers I, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
Cloppers Mill Village Center, LLC | Maryland | GRI-Regency, LLC Eastern Shopping Centers I, LLC | Member | 100 | % |
City Line Shopping Center Associates | Pennsylvania | US Retail Partners Limited Partnership City Line LP, LLC | General Partner Limited Partner | 1% 99% | |
City Line LP, LLC | Delaware | USRP LP, LLC | Member | 100 | % |
FW Allenbeth GP, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
Allenbeth Associates Limited Partnership | Maryland | FW Allenbeth GP, LLC Eastern Shopping Centers I, LLC | General Partner Limited Partner | 1% 99% | |
FW Memorial GP, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
FW TX-Memorial Collection, L.P. | Delaware | FW Memorial GP, LLC FW Texas LP, LLC | General Partner Limited Partner | 1% 99% | |
FW Weslyan GP, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
FW TX-Weslyan Plaza, L.P. | Delaware | FW Weslyan GP, LLC FW Texas LP, LLC | General Partner Limited Partner | 1% 99% | |
FW Woodway GP, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
FW TX-Woodway Collection, L.P. | Delaware | FW Woodway GP, LLC FW Texas LP, LLC | General Partner Limited Partner | 1% 99% | |
FW VA-601 Kings Street, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW VA-Ashburn Farm Village Center, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW VA-Centre Ridge Marketplace, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW VA-Fox Mill Shopping Center, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW VA-Kings Park Shopping Center, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW VA-Saratoga Shopping Center, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW VA-The Village Shopping Center, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW Gayton Crossing Holding, LLC | Delaware | GRI-Regency, LLC | Member | 100 | % |
FW VA-Gayton Crossing Shopping Center, LLC | Delaware | FW Gayton Crossing Holding, LLC | Member | 100 | % |
FW WA-Aurora Marketplace, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW WA-Eastgate Plaza, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW WA-Overlake Fashion Plaza, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
FW WI-Whitnall Square, LLC | Delaware | FW-Reg II Holdings, LLC | Member | 100 | % |
Macquarie-Regency Management, LLC | Delaware | Regency Centers, L.P. CHREI US Retail LLC | Managing Member Member | 50% 50% | |
Macquarie CountryWide-Regency III, LLC | Delaware | Macquarie CountryWide (US) No. 2 LLC Macquarie-Regency Management, LLC Regency Centers, L.P. | Member Managing Member Member | 75.00% .01% 24.99% | |
MCW RC III Hilltop Village Member, LLC | Delaware | Macquarie CountryWide-Regency III, LLC | Member | 100 | % |
(1) Unless otherwise noted, the sole member of all single member limited liability companies is also the managing member or manager of the limited liability company.
Entity | Jurisdiction | Owner(s) | Nature of Interest(1) | % of Ownership | |
MCW RC III Hilltop Village, LLC | Delaware | MCW RC III Hilltop Village Member, LLC | Member | 100 | % |
MCW-RC III Kleinwood GP, LLC | Delaware | Macquarie CountryWide-Regency III, LLC | Member | 100 | % |
MCW-RC III Kleinwood Center, LP | Delaware | MCW-RC III Kleinwood GP, LLC Macquarie CountryWide-Regency III, LLC | General Partner Limited Partner | .05% 99.95% | |
MCW-RC III Murray Landing Member, LLC | Delaware | Macquarie CountryWide-Regency III, LLC | Member | 100 | % |
MCW-RC III Murray Landing, LLC | Delaware | MCW-RC III Murray Landing Member, LLC | Member | 100 | % |
MCW-RC III Vineyard Member, LLC | Delaware | Macquarie CountryWide-Regency III, LLC | Member | 100 | % |
MCW-RC III Vineyard Shopping Center, LLC | Delaware | MCW RC III Vineyard Member, LLC | Member | 100 | % |
MCW-RD Brentwood Plaza, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
MCW-RD Bridgeton, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
MCW-RD Dardenne Crossing, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
MCW-RD Kirkwood Commons Member, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
MCW-RD Kirkwood Commons, LLC | Delaware | MCW-RD Kirkwood Commons Member, LLC | Member | 100 | % |
RegCal, LLC | Delaware | California State Teachers Retirement System Regency Centers, L.P. | Member Managing Member | 75% 25% | |
RegCal Holding, LLC | Delaware | RegCal, LLC | Member | 100 | % |
CAR Apple Valley Square Member, LLC | Delaware | RegCal, LLC | Member | 100 | % |
CAR Apple Valley Square, LLC | Delaware | CAR Apple Valley Square Member, LLC | Member | 100 | % |
CAR Apple Valley Land, LLC | Delaware | RegCal, LLC | Member | 100 | % |
CAR Braemar Village, LLC | Delaware | RegCal, LLC | Member | 100 | % |
CAR Calhoun Commons, LLC | Delaware | RegCal, LLC | Member | 100 | % |
CAR Corral Hollow, LLC | Delaware | RegCal Holding, LLC | Member | 100 | % |
CAR Five Corners Plaza, LLC | Delaware | Five Corners Plaza Member, LLC | Member | 100 | % |
Five Corners Plaza Member, LLC | Delaware | RegCal, LLC | Member | 100 | % |
CAR Fuquay Holding, LLC | Delaware | RegCal, LLC | Member | 100 | % |
CAR Fuquay Crossing, LLC | Delaware | CAR Fuquay Holding, LLC | Member | 100 | % |
CAR Fuquay Property, LLC | Delaware | RegCal, LLC | Member | 100 | % |
CAR Providence Commons, LLC | Delaware | RegCal, LLC | Member | 100 | % |
CAR Providence Commons Two, LLC | Delaware | RegCal, LLC | Member | 100 | % |
CAR Shops at the Columbia, LLC | Delaware | RegCal, LLC | Member | 100 | % |
KF-REG Holding, LLC | Delaware | RegCal, LLC | Member | 100 | % |
KF-REG Associates, LLC | Delaware | KF-REG Holding, LLC | Member | 100 | % |
King Farm Center, LLC | Delaware | KF-REG Associates, LLC | Member | 100 | % |
Regency Retail GP, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
(1) Unless otherwise noted, the sole member of all single member limited liability companies is also the managing member or manager of the limited liability company.
Entity | Jurisdiction | Owner(s) | Nature of Interest(1) | % of Ownership | |
Regency Retail Partners, LP | Delaware | Regency Retail GP, LLC Metropolitan Tower Life Insurance Company General American Life Insurance Company Metropolitan Life Insurance Company STRS Ohio Opportunity Real Estate Investments, LLC NLI Properties East, Inc. (Nippon Life Insurance Company) | General Partner Limited Partner Limited Partner Limited Partner Limited Partner Limited Partner | 30.3% 4.6% 4.6% 9.2% 41.0% 10.3% | |
RRP Parent REIT, Inc. | Maryland | Regency Retail Partners, LP | Common Stock | 100 | % |
RRP GIC Feeder, LP | Delaware | Regency Retail GP, LLC RGNCY Retail Trust | General Partner Limited Partner | .002% 99.998% | |
RRP German Feeder, LP | Delaware | Regency Retail GP, LLC RRP GmbH & Co. KG | General Partner Limited Partner | .005% 99.995% | |
RRP Subsidiary REIT, LP | Delaware | Regency Retail GP, LLC Regency Retail Partners, LP RRP Parent REIT, Inc, RRP GIC Feeder, LP | General Partner Limited Partner Limited Partner Limited Partner | 0.0% .003% 53.922% 46.075% | |
RRP Operating, LP | Delaware | Regency Retail GP, LLC RRP Subsidiary REIT, LP | General Partner Common LP | 8.8% 91.2% | |
RRP Falcon Ridge GP, LLC | Delaware | RRP Operating, LP | Member | 100 | % |
RRP Falcon Ridge Town Center, LP | Delaware | RRP Falcon Ridge GP, LLC RRP Operating, LP | General Partner Limited Partner | .5% 99.5% | |
RRP Falcon Ridge Phase II GP, LLC | Delaware | RRP Operating, LP | Member | 100 | % |
RRP Falcon Ridge Town Center Phase II, LP | Delaware | RRP Falcon Ridge Phase II GP, LLC RRP Operating, LP | General Partner Limited Partner | .5% 99.5% | |
Fortuna Regency, LLC | Delaware | RRP Operating, LP | Member | 100 | % |
RRP Fortuna GP, LLC | Delaware | RRP Operating, LP | Member | 100 | % |
RRP Fortuna, LP | Delaware | RRP Fortuna GP, LLC Fortuna Regency, LLC | General Partner Limited Partner | .5% 99.5% | |
RRP Indian Springs GP, LLC | Delaware | RRP Operating, LP | Member | 100 | % |
RRP Indian Springs, LP | Delaware | RRP Indian Springs GP, LLC RRP Operating, LP | General Partner Limited Partner | .5% 99.5% | |
RRP Orchard Park GP, LLC | Delaware | RRP Operating, LP | Member | 100 | % |
RRP Orchard Park, LP | Delaware | RRP Orchard Park GP, LLC RRP Operating, LP | General Partner Limited Partner | .5% 99.5% | |
RRP Silver Spring GP, LLC | Delaware | RRP Operating, LP | Member | 100 | % |
Silver Spring Square II, L.P. | Delaware | RRP Silver Spring GP, LLC RRP Operating, LP | General Partner Limited Partner | .5% 99.5% | |
RRP Sycamore Plaza GP, LLC | Delaware | RRP Operating, LP | Member | 100 | % |
RRP Sycamore Plaza, LP | Delaware | RRP Sycamore Plaza GP, LLC RRP Operating, LP | General Partner Limited Partner | .5% 99.5% | |
RRP Vista Village Phase I GP, LLC | Delaware | RRP Operating, LP | Member | 100 | % |
RRP Vista Village Phase I, LP | Delaware | RRP Vista Village Phase I GP, LLC RRP Operating, LP | General Partner Limited Partner | .5% 99.5% | |
RRP Vista Village Phase II GP, LLC | Delaware | RRP Operating, LP | Member | 100 | % |
RRP Vista Village Phase II, LP | Delaware | RRP Vista Village Phase II GP, LLC RRP Operating, LP | General Partner Limited Partner | .5% 99.5% | |
(1) Unless otherwise noted, the sole member of all single member limited liability companies is also the managing member or manager of the limited liability company.
Entity | Jurisdiction | Owner(s) | Nature of Interest(1) | % of Ownership | |
US Regency Retail REIT I | Texas | US Southern Retail, LLC US Republic Core Fund, L.P. Regency Centers, L.P. | Common Stock Common Stock Common Stock | 57.27% 23.53% 19.20% | |
US Regency Retail I, LLC | Delaware | US Regency Retail REIT I Regency Centers, L.P. | Member Managing Member | 99% 1% | |
RC FL-Anastasia, LLC (fka MCW-RC FL-Anastasia, LLC) | Delaware | Regency Centers, L.P. | Member | 100 | % |
RC-FL King's Crossing, LLC (fka MCW-RC FL-King's, LLC and fka MCW-RC Florida, LLC) | Delaware | Regency Centers, L.P. | Member | 100 | % |
RC FL-Shoppes at 104, LLC (fka MCW-RC FL-Shoppes at 104, LLC) | Delaware | Regency Centers, L.P. | Member | 100 | % |
RC GA-Howell Mill, LLC (fka MCW-RC GA-Howell Mill Village, LLC) | Delaware | Regency Centers, LLC | Member | 100 | % |
MCD-RC CA-Amerige, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
MCD-RC El Cerrito Holdings, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
MCD-RC CA-El Cerrito, LLC | Delaware | MCD-RC El Cerrito Holdings, LLC | Member | 100 | % |
REG8 Member, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
REG8 Tassajara Crossing, LLC | Delaware | REG8 Member, LLC | Member | 100 | % |
REG8 Plaza Hermosa, LLC | Delaware | REG8 Member, LLC | Member | 100 | % |
REG8 Sequoia Station, LLC | Delaware | REG8 Member, LLC | Member | 100 | % |
REG8 Mockingbird Commons, LLC | Delaware | REG8 Member, LLC | Member | 100 | % |
REG8 Sterling Ridge, LLC | Delaware | REG8 Member, LLC | Member | 100 | % |
REG8 Prestonbrook Crossing, LLC | Delaware | REG8 Member, LLC | Member | 100 | % |
REG8 Wellington, LLC | Delaware | REG8 Member, LLC | Member | 100 | % |
REG8 Berkshire Commons, LLC | Delaware | REG8 Member, LLC | Member | 100 | % |
FL-Corkscrew Village Member, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
FL-Corkscrew Village, LLC | Delaware | FL-Corkscrew Village Member, LLC | Member | 100 | % |
FL-Crossroads Shopping Center Member, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
FL-Crossroads Shopping Center, LLC | Delaware | FL-Crossroads Shopping Center Member, LLC | Member | 100 | % |
FL-Naples Walk Shopping Center Member, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
FL-Naples Walk Shopping Center, LLC | Delaware | FL-Naples Walk Shopping Center Member, LLC | Member | 100 | % |
FL-Northgate Square Member, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
FL-Northgate Square, LLC | Delaware | FL-Northgate Square Member, LLC | Member | 100 | % |
19330 Hawthorne, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
4S Regency Partners, LLC | Delaware | Regency Centers, L.P. 4S Ranch Company 1700, L.P. | Member Member | 80% 20% | |
Alba Village Regency, LLC | Delaware | Regency Centers, L.P. Northgate Center Phase I, LLC | Member Member | Varies | |
Applegate Ranch, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
(1) Unless otherwise noted, the sole member of all single member limited liability companies is also the managing member or manager of the limited liability company.
Entity | Jurisdiction | Owner(s) | Nature of Interest(1) | % of Ownership | |
Bammel North Houston Center, Ltd. | Texas | Regency Centers, L.P. HEB Grocery Company, LP | General Partner Limited Partner | Varies | |
Bartram Park Center, LLC | Delaware | Regency Centers, L.P. Real Sub, LLC | Managing Member Member | Varies | |
Belleview Square, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Bridges Insurance Company | South Carolina | Regency Centers, L.P. | Shareholder | 100 | % |
Buckwalter Bluffton, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Clayton Valley Shopping Center, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Colonnade Regency, L.P. | Delaware | Regency NC GP, LLC Regency Centers, L.P. | General Partner Limited Partner | 1% 99% | |
Conroe/White Oak Marketplace, Ltd. | Texas | Regency Centers, L.P. HEB Grocery Co., L.P. | General Partner Limited Partner | Varies | |
Corvallis Market Center, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
CPGPI Erwin, LLC | Delaware | Regency Centers, L.P. CPGPI Erwin Retail, LLC | Managing Member Member | Varies | |
Deer Springs Town Center, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Fairfax Regency, LLC | Delaware | Regency Centers, L.P. J. Donegan Company | Managing Member Member | Varies | |
Fairhope, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Fortuna Regency Phase II, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
FV Commons, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Gateway Azco GP, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Gateway Azco LP, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
AZCO Partners | Pennsylvania | Gateway Azco Partners GP, LLC Gateway Azco LP, LLC | General Partner Limited Partner | 1% 99% | |
Gateway Azco Manager, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Glen Oak Glenview, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Glenview-REG, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Grand Ridge Plaza I, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Grand Ridge Plaza II, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Hasley Canyon Village, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Hibernia North, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Hickory Creek Plaza, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Hoadly Regency, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Indian Springs GP, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Indian Springs at Woodlands, Ltd. | Texas | Indian Springs GP, LLC Regency Woodlands/Kuykendahl Retail, Ltd. | General Partner Limited Partner | 0.1% 99.9% | |
Indio Jackson, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Kent Place Regency, LLC | Delaware | Regency Centers, L.P. Kent Place Investors, LLC | Managing Member Member | Varies | |
Langston Center, LLC | Delaware | Regency Centers, L.P. Real Sub, LLC | Member Member | 50% 50% | |
Lee Regency, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
The Marketplace at Briargate, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Menifee Marketplace, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
(1) Unless otherwise noted, the sole member of all single member limited liability companies is also the managing member or manager of the limited liability company.
Entity | Jurisdiction | Owner(s) | Nature of Interest(1) | % of Ownership | |
Merrimack Shopping Center, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Murfreesboro North, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Murieta Gardens Shopping Center, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
NSHE Winnebago, LLC | Arizona | Regency Centers, L.P. | Member | 100 | % |
NTC-REG, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
New Smyrna Regency, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
New Windsor Marketplace, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Northlake Village Shopping Center, LLC | Florida | Regency Centers, L.P. | Member | 100 | % |
Oakshade Regency, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Ocala Corners, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Ocala Retail Partners, LLC | Delaware | Regency Centers, L.P. Real Sub, LLC | Member Member | 50% 50% | |
Otay Mesa Crossing, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Parmer Tech Ridge, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Queensboro Associates, L.P. | Georgia | Regency Centers, L.P. Real Sub, LLC | General Partner Limited Partner | 50% 50% | |
Regency Centers Acquisitions, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Regency Centers Advisors, LLC | Florida | Regency Centers, L.P. | Member | 100 | % |
RC CA Santa Barbara, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
RC Georgia Holdings, LLC | Georgia | Regency Centers, L.P. | Member | 100 | % |
Red Bank Village, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Regency Alliance Santa Rosa | Delaware | Regency Centers, L.P. | Member | 100 | % |
Regency Centers Georgia, L.P. | Georgia | RC Georgia Holdings, LLC Regency Centers, L.P. | General Partner Limited Partner | 1% 99% | |
Regency Blue Ash, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Regency Cahan Clovis, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Regency Magi, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Regency Marinta-LaQuinta, LLC | Delaware | Regency Centers, L.P. Marinita Development Co. | Managing Member Member | Interests Vary | |
Regency NC GP, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Regency Opitz, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Regency Petaluma, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Regency Remediation, LLC | Florida | Regency Centers, L.P. | Member | 100 | % |
Regency Woodlands/Kuykendahl Retail, Ltd. | Texas | Regency Centers, L.P. HEB Grocery Company, LP | General Partner Limited Partner | 50% 50% | |
Shops at Saugus, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Signature Plaza, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Southpark Cinco Ranch, LLC | Delaware | Regency Centers, L.P. Southpark HRC, LLC | Managing Member Member | Varies | |
Spring Hill Town Center, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
T&M Shiloh Development Company | Texas | Regency Centers, L.P. | General Partner | 100 | % |
T&R New Albany Development Company, LLC | Ohio | Regency Centers, L.P. Topvalco | Managing Member Member | 50% 50% | |
(1) Unless otherwise noted, the sole member of all single member limited liability companies is also the managing member or manager of the limited liability company.
Entity | Jurisdiction | Owner(s) | Nature of Interest(1) | % of Ownership | |
Tinwood, LLC | Delaware | Regency Centers, L.P. Real Sub, LLC | Managing Member Member | 50% 50% | |
Tinwood-Lynn Haven, LLC | Delaware | Tinwood, LLC | Member | 100 | % |
Tinwood-Pebblebrooke, LLC | Delaware | Tinwood, LLC | Member | 100 | % |
Twin City Plaza Member, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Twin City Plaza, LLC | Delaware | Twin City Plaza Member, LLC | Member | 100 | % |
Valleydale, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Vista Village, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Wadsworth, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
DJB No. 23, L.P. | Texas | Wadsworth, LLC Regency Centers, L.P. | General Partner Limited Partner | 1% 99% | |
WFC-Purnell, L.P. | Delaware | Regency NC GP, LLC Regency Centers, L.P. | General Partner Limited Partner | 1% 99% | |
Walton Town Center, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
Waterside Marketplace, LLC | Delaware | Regency Centers, L.P. | Member | 100 | % |
RRG Holdings, LLC | Florida | Regency Centers, L.P. | Member | 100 | % |
Regency Realty Group, Inc. | Florida | Regency Centers, L.P. RRG Holdings, LLC | Preferred Stock Common Stock Common Stock | 100% 7% 93% | |
1488-2978 SC GP, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
1488-2978 SC, L.P. | Texas | 1488-2978 SC GP, LLC Regency Realty Group, Inc. | General Partner Limited Partner | 1% 99% | |
Accokeek Regency South, LLC | Delaware | Regency Realty Group, Inc. Accokeek South, LLC | Managing Member Member | Interests Vary | |
Alameda Bridgeside Shopping Center, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
Amherst Street Shopping Center, LLC | Delaware | Regency Realty Group | Member | 100 | % |
Bordeaux Development, LLC | Florida | Regency Realty Group, Inc. | Member | 100 | % |
Caligo Crossing, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
Castaic Vine, LLC | Texas | Regency Realty Group, Inc. | Member | 100 | % |
Cathedral City Rio Vista Town Centre, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
Chestnut Powder, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
Clarksburg Retail Partners, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
Culpeper Regency, LLC | Florida | Regency Realty Group, Inc. | Member | 100 | % |
Dixon, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
East Towne Center, LLC | Texas | Regency Realty Group, Inc. Lake McLeod, LLC | Managing Member Member | Interests Vary | |
Edmunson Orange Corp. | Delaware | Regency Realty Group, Inc. | Common Stock | 100 | % |
Edmunson Orange North Carolina, LLC | Delaware | Edmunson Orange Corp. | Member | 100 | % |
VP101, LLC | Delaware | Edmunson Orange Corp. | Member | 100 | % |
Gateway 101, LLC | Florida | Regency Realty Group, Inc. | Member | 100 | % |
Hanover Northampton GP, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
Hanover Northampton LP Holding, LLC | Texas | Regency Realty Group, Inc. | Member | 100 | % |
(1) Unless otherwise noted, the sole member of all single member limited liability companies is also the managing member or manager of the limited liability company.
Entity | Jurisdiction | Owner(s) | Nature of Interest(1) | % of Ownership | |
Hanover Northampton Partner, LP | Delaware | Hanover Northampton LP Holding, LLC Regency Realty Group, Inc. | General Partner Limited Partner | 0% 100% | |
Hanover Northampton Retail, LP | Delaware | Hanover Northampton GP, LLC Hanover Northampton Partner, LP | General Partner Limited Partner | .5% 99.5% | |
Hermitage Development II, LLC | Florida | Regency Realty Group, Inc. | Member | 100 | % |
Kulpsville Village Center LP, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
Kulpsville Village Center, LP | Delaware | Kulpsville Village Center LP, LLC Regency Realty Group, Inc. | General Partner Limited Partner | .5% 99.5% | |
Lonestar Retail, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
Loveland Shopping Center, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
Lower Nazareth LP Holding, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
Lower Nazareth Partner, LP | Delaware | Regency Realty Group, Inc. Lower Nazareth LP Holding, LLC | Limited Partner General Partner | 100% 0% | |
Lower Nazareth GP, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
Lower Nazareth Commons, LP | Delaware | Lower Nazareth GP, LLC Lower Nazareth Partner, LP | General Partner Limited Partner | .5% 99.5% | |
Lower Nazareth II LP Holding, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
Lower Nazareth II Partner, LP | Delaware | Lower Nazareth II LP Holding, LLC Regency Realty Group, Inc. | General Partner Limited Partner | 0% 100% | |
Lower Nazareth II GP, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
Lower Nazareth Commons II, LP | Delaware | Lower Nazareth II GP, LLC Lower Nazareth II Partner, LP | General Partner Limited Partner | .5% 99.5% | |
Luther Properties, Inc. | Tennessee | Regency Realty Group, Inc. | Common Stock | 100 | % |
Marietta Outparcel, Inc. | Georgia | Regency Realty Group, Inc. | Common Stock | 100 | % |
Middle Creek Commons, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
Mitchell Service, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
NorthGate Regency, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
Paso Golden Hill, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
R2 Media, LLC | Florida | Regency Realty Group, Inc. | Member | 100 | % |
RB Airport Crossing, LLC | Delaware | Regency Realty Group, Inc. Airport 6, LLC | Managing Member Member | Interests Vary | |
RB Augusta, LLC | Delaware | Regency Realty Group, Inc. P-6, LLC | Managing Member Member | Interests Vary | |
RB Schererville Crossings, LLC | Delaware | Regency Realty Group, Inc. WH41, LLC | Managing Member Member | Interests Vary | |
RB Schererville 101, LLC | Indiana | RB Schererville Crossings, LLC | Member | 100 | % |
RB Schererville 102, LLC | Indiana | RB Schererville Crossings, LLC | Member | 100 | % |
RB Schererville 103, LLC | Indiana | RB Schererville Crossings, LLC | Member | 100 | % |
RB Schererville 104, LLC | Indiana | RB Schererville Crossings, LLC | Member | 100 | % |
RB Schererville 105, LLC | Indiana | RB Schererville Crossings, LLC | Member | 100 | % |
RB Schererville 106, LLC | Indiana | RB Schererville Crossings, LLC | Member | 100 | % |
RRG Net, LLC | Florida | Regency Realty Group, Inc. | Member | 100 | % |
Regency I-45/Spring Cypress Retail, L.P. | Delaware | Regency Realty Group, Inc. HEB Grocery Company, L.P. | General Partner Limited Partner | Interests Vary | |
Regency/PGM-Burkitt, LLC | Delaware | Regency Realty Group, Inc. PGM-Burkitt, LLC | Managing Member Member | Interests Vary | |
(1) Unless otherwise noted, the sole member of all single member limited liability companies is also the managing member or manager of the limited liability company.
Entity | Jurisdiction | Owner(s) | Nature of Interest(1) | % of Ownership | |
Regency Realty Colorado, Inc. | Florida | Regency Realty Group, Inc Snowden Leftwich | Common Stock Common Stock | 80% 20% | |
Regency Realty Group-NE, Inc. | Florida | Regency Realty Group, Inc. | Common Stock | 100 | % |
Regency Solar, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
SS Harbour GP, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
SS Harbour, L.P. | Texas | SS Harbour GP, LLC Regency Realty Group, Inc. | General Partner Limited Partner | 1% 99% | |
Seminole Shoppes, LLC | Delaware | Regency Reatly Group, Inc. M&P Shopping Centers | Managing Member Member | 50% 50% | |
Shops at Highland Village GP, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
Shops at Highland Village Development, Ltd. | Texas | Shops at Highland Village GP, LLC Regency Realty Group, Inc. | General Partner Limited Partner | 1% 99% | |
Shops at Quail Creek, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
Slausen Central, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
Stanley Bernal, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
State Street Crossing, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
Stonewall Regency, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
Summerville-Orangeburg, LLC | Delaware | Regency Realty Group, Inc. | Member | 100 | % |
RRG Pennsylvania GP, Inc. | Florida | Regency Realty Group, Inc. | Common Stock | 100 | % |
Swatara Marketplace LP | Delaware | RRG Pennsylvania GP, Inc. Regency Realty Group, Inc. | General Partner Limited Partner | .5% 99.5% | |
Tysons Seven, LLC | Delaware | Regency Realty Group, Inc. JDC Tysons, LLC | Managing Member Member | Varies | |
West End Properties, LLC | Florida | Regency Realty Group, Inc. | Member | 100 | % |
(1) Unless otherwise noted, the sole member of all single member limited liability companies is also the managing member or manager of the limited liability company.
Exhibit 3.1
AMENDMENT TO RESTATED ARTICLES OF INCORPORATION OF
REGENCY CENTERS CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 3,000,000 SHARES OF
6.0% SERIES 7 CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation Act ("FBCA"), Regency Centers Corporation, a Florida corporation (the "Corporation"), does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of Directors of the Corporation by Section 4.2 of the Amended and Restated Articles of Incorporation of the Corporation (the "Articles") and Section 607.0602 of the FBCA, the Board of Directors of the Corporation (the "Board of Directors"), by resolutions duly adopted on July 27, 2012 and resolutions duly adopted on August 14, 2012 by a committee appointed by the Board of Directors, has classified 3,000,000 shares of the authorized but unissued Preferred Stock, par value $.01 per share ("Preferred Stock"), as a separate series of Preferred Stock, authorized the issuance of a maximum of 3,000,000 shares of such series of Preferred Stock, set certain of the preferences, voting powers, restrictions, limitations as to dividends, qualifications, terms and conditions of redemption and other terms and conditions of such series of Preferred Stock, and pursuant to the powers contained in the Bylaws of the Corporation and the FBCA, appointed a committee (the "Committee") and delegated to the Committee, to the fullest extent permitted by the FBCA and the Articles and Bylaws of the Corporation, all powers of the Board of Directors with respect to designating, and setting all other preferences, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption and other terms and conditions of, such series of Preferred Stock and determining the number of shares of such series of Preferred Stock (not in excess of the aforesaid maximum number) to be issued and the consideration and other terms and conditions upon which such shares of such series of Preferred Stock are to be issued. Shareholder approval was not required under the Articles with respect to such designation.
SECOND: Pursuant to the authority conferred upon the Committee as aforesaid, the Committee has unanimously adopted resolutions designating the aforesaid series of Preferred Stock as the “6.0% Series 7 Cumulative Redeemable Preferred Stock," setting the preferences, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, terms and conditions of redemption and other terms and conditions of such 6.0% Series 7 Cumulative Redeemable Preferred Stock (to the extent not set by the Board of Directors in the resolutions referred to in Article FIRST of these Articles of Amendment) and authorizing the issuance of up to 3,000,000 shares of 6.0% Series 7 Cumulative Redeemable Preferred Stock.
THIRD: The series of Preferred Stock of the Corporation created by the resolutions duly adopted by the Board of Directors of the Corporation and by the Committee and referred to in Articles FIRST and SECOND of these Articles of Amendment shall have the following designation, number of shares, preferences, voting powers, restrictions and limitation as to dividends and other distributions, qualifications, terms and conditions of redemption and other terms and conditions:
Section 1. Designation and Number. A series of Preferred Stock, designated the "6.0% Series 7 Cumulative Redeemable Preferred Stock, $0.01 par value per share" (the "Series 7 Preferred Stock") is hereby established. The number of shares of Series 7 Preferred Stock shall be 3,000,000.
Section 2. Rank. The Series 7 Preferred Stock will, with respect to distributions and rights upon voluntary or involuntary liquidation, winding‑up or dissolution of the Corporation, rank (i) senior to all classes or series of Common Stock (as defined in the Articles) and to all classes or series of equity securities of the Corporation now or hereafter authorized, issued or outstanding, the terms of which provide that such equity securities shall rank junior to the Series 7 Preferred Stock; (ii) on a parity with the 6.70% Series 5 Cumulative Redeemable Preferred Stock (the “Series 5 Preferred Stock”) and the 6.625% Series 6 Cumulative Redeemable Preferred Stock (the “Series 6 Preferred Stock”), and any class or series of equity securities of the Corporation now or hereafter authorized, issued or outstanding, the terms of which provide that such equity securities shall rank pari passu with the Series 7 Preferred Stock, whether or not the dividend rates, dividend payment dates or redemption or liquidation prices per share shall be different from those of the Series 7 Preferred Stock (together, the "Parity Preferred Stock"); and (iii) junior to all class or series of equity securities of the Corporation now or hereafter authorized, issued or outstanding, the terms of which provide that such equity securities shall rank senior to the Series 7 Preferred Stock. For purposes of these Articles of Amendment, the term "equity securities" does not include convertible debt securities, which will rank senior to the Series 7 Preferred Stock prior to conversion thereof.
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Section 3. Dividends.
A. Payment of Dividends. Subject to the rights of holders of Parity Preferred Stock as to the payment of dividends and holders of equity securities issued after the date hereof in accordance herewith ranking senior to the Series 7 Preferred Stock as to payment of dividends, holders of Series 7 Preferred Stock shall be entitled to receive, when and as declared by the Board of Directors of the Corporation, out of funds legally available for the payment of dividends, cumulative preferential cash dividends at the rate per annum of 6.0% of the $25.00 liquidation preference per share of Series 7 Preferred Stock (equivalent to $1.50 per annum per share of the Series 7 Preferred Stock). Such dividends shall be cumulative, shall accrue from and including the original date of issuance, and shall be payable in cash (a) quarterly (such quarterly periods for purposes of payment and accrual will be the quarterly periods ending on the dates specified in this sentence) in arrears, on or about March 31, June 30, September 30 and December 31 of each year commencing on December 31, 2012 and, (b) in the event of a redemption, on the redemption date (each a "Dividend Payment Date"); provided that if any Dividend Payment Date is not a Business Day (as defined herein), then payment of the dividend which would otherwise have been payable on such date shall be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such Dividend Payment Date. The amount of the dividend payable for any period shall be computed on the basis of a 360-day year consisting of twelve 30-day months and for any partial dividend period, the amount of the dividend payable shall be prorated and be computed on the basis of the ratio of the actual number of days elapsed in such period to ninety (90) days. Dividends on the Series 7 Preferred Stock shall be made to the holders of record of the Series 7 Preferred Stock on the close of business on the first day of the month in which the Dividend Payment Date occurs, or on such other record dates to be fixed by the Board of Directors of the Corporation, which record dates shall be not less than 10 days and not more than 30 Business Days prior to the relevant Dividend Payment Date (each a "Dividend Record Date").
The term "Business Day" shall mean each day, other than a Saturday or a Sunday, which is not a day on which banking institutions in New York, New York are authorized or required by law, regulation or executive order to close.
B. Limitation on Dividends. No dividend on the Series 7 Preferred Stock shall be declared or paid or funds set apart for payment by the Corporation at such time as the terms and provisions of any agreement of the Corporation, including any agreement relating to its indebtedness, prohibit such declaration, payment or setting apart funds for payment or provide that such declaration, payment or setting apart funds for payment would constitute a breach thereof or a default thereunder, or if such declaration, payment or setting apart funds for payment shall be restricted or prohibited by law. Nothing in this Section 3(B) shall be deemed to modify or in any manner limit the provisions of Section 3(C) and Section 3(D).
C. Dividends Cumulative. Notwithstanding anything contained in this Section 3, dividends on the Series 7 Preferred Stock will accrue whether or not the terms and provisions of any agreement of the Corporation, including any agreement relating to its indebtedness, at any time prohibit the current payment of dividends, whether or not the Corporation has earnings, whether or not there are funds legally available for the payment of such dividends, and whether or not such dividends are declared. Accrued but unpaid dividends on the Series 7 Preferred Stock shall accumulate as of the Dividend Payment Date on which they first become payable. Dividends on account of arrears for any past dividend periods may be declared and paid at any time, without reference to a regular Dividend Payment Date to holders of record of the Series 7 Preferred Stock on the record date fixed by the Board of Directors which date shall be not less than 10 days and not more than 30 Business Days prior to the payment date. Accrued and unpaid dividends shall not bear interest.
D. Priority as to Dividends.
(i)So long as any Series 7 Preferred Stock is outstanding, no dividend or distribution of cash or other property shall be authorized, declared, paid or set apart for payment on or with respect to any class or series of Common Stock or any class or series of other stock of the Corporation ranking junior to the Series 7 Preferred Stock as to the payment of dividends (such Common Stock or other junior stock, collectively, "Junior Stock"), nor shall any cash or other property be set aside for or applied to the purchase, redemption or other acquisition for consideration of any Series 7 Preferred Stock, any Parity Preferred Stock with respect to dividends, or any Junior Stock, unless, in each case, all dividends accumulated on all Series 7 Preferred Stock and all classes and series of outstanding Parity Preferred Stock with respect to dividends have been paid in full or funds have been set apart for the payment therefor for all past dividend periods. Without limiting Section 5(B) hereof, the fore-going sentence will not prohibit (i) dividends or distributions payable solely in the form of Common Stock or other Junior Stock, (ii) the conversion of Junior Stock or Parity Preferred Stock into Junior Stock, (iii) acquisitions by the Corporation of the Series 7 Preferred Stock, Parity Preferred Stock, Junior Stock or any other capital stock pursuant to Article 5 of the Articles to the extent required to preserve the Corporation's status as a real estate investment trust, (iv) acquisitions of Junior Stock for purposes of any employee or director benefit plan of the Corporation or any subsidiary, and (v) purchases or acquisitions of shares of Series 7 Preferred
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Stock pursuant to a purchase or an exchange offer that is made on the same terms to all holders of Series 7 Preferred Stock.
(ii)So long as dividends have not been paid in full (or a sum sufficient for such full payment is not irrevocably deposited in trust for payment) upon the Series 7 Preferred Stock and Parity Preferred Stock with respect to dividends, all dividends authorized and declared on the Series 7 Preferred Stock and all classes or series of outstanding Parity Preferred Stock with respect to dividends shall be authorized and declared pro rata so that the amount of dividends authorized and declared per share of Series 7 Preferred Stock and such other classes or series of Parity Preferred Stock shall in all cases bear to each other the same ratio that accrued dividends per share on the Series 7 Preferred Stock and on such other classes or series of Parity Preferred Stock (which shall not include any accumulation in respect of unpaid dividends for prior dividend periods if such class or series of Parity Preferred Stock does not have cumulative distribution rights) bear to each other.
E. No Further Rights. Holders of Series 7 Preferred Stock shall not be entitled to any dividends or distributions, whether payable in cash, other property or otherwise, in excess of the full cumulative dividends described herein.
Section 4. Liquidation Preference.
A. Payment of Liquidating Distributions. Subject to the rights of holders of Parity Preferred Stock with respect to rights upon any voluntary or involuntary liquidation, dissolution or winding‑up of the Corporation and subject to equity securities ranking senior to the Series 7 Preferred Stock with respect to rights upon any voluntary or involuntary liquidation, dissolution or winding‑up of the Corporation, the holders of Series 7 Preferred Stock shall be entitled to receive out of the assets of the Corporation legally available for distribution or the proceeds thereof, before any payment or distributions of the assets shall be made to holders of Common Stock or any other class or series of shares of the Corporation that ranks junior to the Series 7 Preferred Stock as to rights upon liquidation, dissolution or winding‑up of the Corporation, a liquidation distribution in cash or property at fair market value as determined by the Board of Directors equal to the sum of (i) a liquidation preference of $25.00 per share of Series 7 Preferred Stock, and (ii) an amount equal to any accrued and unpaid dividends thereon, whether or not declared, to, but not including, the date of payment. In the event that, upon such voluntary or involuntary liquidation, dissolution or winding‑up, there are insufficient assets to permit full payment of liquidating distributions to the holders of Series 7 Preferred Stock and any Parity Preferred Stock as to rights upon liquidation, dissolution or winding‑up of the Corporation, all payments of liquidating distributions on the Series 7 Preferred Stock and such Parity Preferred Stock shall be made so that the payments on the Series 7 Preferred Stock and such Parity Preferred Stock shall in all cases bear to each other the same ratio that the respective rights of the Series 7 Preferred Stock and such other Parity Preferred Stock (which shall not include any accumulation in respect of unpaid dividends or distributions for prior dividend or distribution periods if such Parity Preferred Stock does not have cumulative dividend or distribution rights) upon liquidation, dissolution or winding‑up of the Corporation bear to each other.
B. Notice. Written notice of any such voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, stating the payment date or dates when, and the place or places where, the amounts distributable in such circumstances shall be payable, shall be given by first class mail, postage pre-paid, not less than 30 and not more than 60 days prior to the payment date stated therein, to each record holder of the Series 7 Preferred Stock at the respective addresses of such holders as the same shall appear on the share transfer records of the Corporation.
C. No Further Rights. After payment of the full amount of the liquidating dividends to which they are entitled, the holders of Series 7 Preferred Stock will have no right or claim to any of the remaining assets of the Corporation.
D. Consolidation, Merger or Certain Other Transactions. For the purposes of this Section 4, the sale, conveyance, lease, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the property or assets of the Corporation to, or the consolidation or merger or other business combination of the Corporation with or into, any corporation, trust or other business entity (or of any corporation, trust or other entity with or into the Corporation) shall not be deemed to constitute a liquidation, dissolution or winding-up of the Corporation.
E. Permissible Distributions. In determining whether a distribution (other than upon voluntary liquidation) by dividend, redemption or other acquisition of shares of stock of the Corporation or otherwise is permitted under the FBCA, no effect shall be given to amounts that would be needed, if the Corporation were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of holders of shares of stock of the Corporation whose preferential rights upon dissolution are superior to those receiving the distribution.
Section 5. Optional Redemption.
A. Right of Optional Redemption. Except as described in this Section 5 and Section 6 below, the Series
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7 Preferred Stock may not be redeemed prior to August 23, 2017. On or after August 23, 2017, the Corporation shall have the right to redeem the Series 7 Preferred Stock for cash, in whole or in part, at any time or from time to time, upon not less than 30 nor more than 60 days' written notice, at a redemption price equal to $25.00 per share of Series 7 Preferred Stock plus accrued and unpaid dividends, whether or not declared, to the date of redemption (the “Redemption Right”). If fewer than all of the outstanding shares of Series 7 Preferred Stock are to be redeemed, the shares of Series 7 Preferred Stock to be redeemed shall be selected pro rata (as nearly as practicable without creating fractional shares) or by lot or in such other equitable method prescribed by the Corporation. To ensure that the Corporation remains qualified as a REIT for federal income tax purposes, however, the Series 7 Preferred Stock shall be subject to the provisions of Article V of the Articles pursuant to which Series 7 Preferred Stock owned by a shareholder in excess of the Ownership Limit (as defined in Article V of the Articles) shall be deemed to hold such shares of Series 7 Preferred Stock in trust on behalf of and for the benefit of the Corporation.
B. Limitation on Redemption. Unless full cumulative dividends on all Series 7 Preferred Stock and other equity securities ranking on parity with the Series 7 Preferred Stock have been or contemporaneously are declared and paid or authorized and declared and a sum sufficient for the payment thereof set aside for payment for all past dividend periods, no Series 7 Preferred Stock or other equity securities ranking on parity with the Series 7 Preferred Stock may be redeemed unless all outstanding Series 7 Preferred Stock and other equity securities ranking on parity with the Series 7 Preferred Stock are simultaneously redeemed; provided, however, that the foregoing shall not prevent the purchase or acquisition of shares of Series 7 Preferred Stock and other equity securities ranking on parity with the Series 7 Preferred Stock for the purpose of preserving the Corporation's status as a REIT or pursuant to a purchase or exchange offer that is made on the same terms to all holders of Series 7 Preferred Stock and other equity securities ranking on a parity with the Series 7 Preferred Stock as to dividends. In addition, unless full cumulative dividends on all Series 7 Preferred Stock and other equity securities ranking on parity with the Series 7 Preferred Stock have been or contemporaneously are authorized and declared and paid or authorized and declared and a sum sufficient for the payment thereof set aside for payment for all past dividend or distribution periods, the Corporation may not purchase or otherwise acquire directly or indirectly for any consideration, nor may any monies be paid to or be made available for a sinking fund for the redemption of, any Series 7 Preferred Stock or other equity securities ranking on parity with the Series 7 Preferred Stock (except by conversion into or exchange for equity securities ranking junior to the Series 7 Preferred Stock as to distributions and upon liquidation or by redemption or other acquisition of shares under incentive, benefit or share purchase plans for officers, trustees or employees or others performing or providing similar services); provided, however, that Corporation may purchase or acquire Series 7 Preferred Stock and other equity securities ranking on parity with the Series 7 Preferred Stock for the purpose of preserving the Corporation's status as a REIT or pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding Series 7 Preferred Stock and Parity Preferred Stock.
C. Unpaid Dividends. Immediately prior to or upon any redemption of Series 7 Preferred Stock, the Corporation shall pay, in cash, any accumulated and unpaid dividends to, but not including, the redemption date, unless a redemption date falls after a Dividend Record Date and prior to the corresponding Dividend Payment Date, in which case each holder of Series 7 Preferred Stock at the close of business on such Dividend Record Date shall be entitled to the dividends payable on such shares on the corresponding Dividend Payment Date (including any accumulated and unpaid dividends for prior periods) notwithstanding the redemption of such shares before such Dividend Payment Date. Except as provided above, the Corporation will make no payment or allowance for unpaid dividends, whether or not in arrears, on Series 7 Preferred Stock for which a notice of redemption has been given.
D. Procedures for Redemption.
(i)Notice of redemption will be mailed by the Corporation, postage prepaid, not less than 30 nor more than 60 days prior to the redemption date, addressed to the respective holders of record of the Series 7 Preferred Stock to be redeemed at their respective addresses as they appear on the transfer records of the Corporation. No failure to give or defect in such notice shall affect the validity of the proceedings for the redemption of any Series 7 Preferred Stock except as to the holder to whom such notice was defective or not given. In addition to any information required by law or by the applicable rules of any exchange upon which the Series 7 Preferred Stock may be listed or admitted to trading, each such notice shall state: (a) the redemption date, (b) the redemption price, (c) the number of shares of Series 7 Preferred Stock to be redeemed, (d) the place or places where such shares of Series 7 Preferred Stock are to be surrendered for payment of the redemption price, (e) that dividends on the Series 7 Preferred Stock to be redeemed will cease to accrue immediately prior to such redemption date and (f) that payment of the redemption price and any accumulated and unpaid dividends will be made upon presentation and surrender of such Series 7 Preferred Stock. If fewer than all of the shares of Series 7 Preferred Stock held by any holder are to be redeemed, the notice mailed to such holder shall also specify the number of shares of Series 7 Preferred Stock held by such holder to be redeemed.
(ii)If the Corporation shall so require and the notice shall so state, on or after the redemption date, each holder of Series 7 Preferred Stock to be redeemed shall present and surrender the certificates evidencing her Series
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7 Preferred Stock, to the extent such shares are certificated, to the Corporation at the place designated in the notice of redemption and thereupon the redemption price of such shares (including all accumulated and unpaid dividends to, but not including, the redemption date, except otherwise provided in Section 5(c)) shall be paid to or on the order of the person whose name appears on such certificate evidencing Series 7 Preferred Stock as the owner thereof and each surrendered certificate shall be canceled. If fewer than all the shares evidenced by any such certificate evidencing Series 7 Preferred Stock are to be redeemed, a new certificate shall be issued evidencing the unredeemed shares. In the event that the Series 7 Preferred Stock to be redeemed are uncertificated, such shares shall be redeemed in accordance with the notice and the applicable procedures of any depository and no further action on the part of the holders of such shares shall be required.
(iii)From and after the redemption date (unless the Corporation defaults in payment of the redemption price), all dividends on the Series 7 Preferred Stock designated for redemption in such notice shall cease to accrue and all rights of the holders thereof, except the right to receive the redemption price thereof (including all accrued and unpaid dividends to, but not including, the redemption date, except otherwise provided in Section 5(c)), shall cease and terminate and such shares shall not thereafter be transferred (except with the consent of the Corporation) on the Corporation's share transfer records, and such shares shall not be deemed to be outstanding for any purpose whatsoever. At its election, the Corporation, prior to a redemption date, may irrevocably deposit the redemption price (including accumulated and unpaid dividends to, but not including, the redemption date) of the Series 7 Preferred Stock so called for redemption in trust for the holders thereof with a bank or trust company, in which case the redemption notice to holders of the Series 7 Preferred Stock to be redeemed shall (A) state the date of such deposit, (B) specify the office of such bank or trust company as the place of payment of the redemption price and (C) require such holders to surrender the certificates evidencing such shares, to the extent such shares are certificated, at such place on or about the date fixed in such redemption notice (which may not be later than the redemption date) against payment of the redemption price (including all accumulated and unpaid dividends to, but not including, the redemption date).
(iv)Subject to applicable escheat laws, if funds deposited by the Corporation in trust pursuant to Section 5(C)(iii) remain unclaimed by the holders of shares called for redemption, such funds shall be repaid to the Corporation at the end of three years, and thereafter the holder of any such shares shall look only to the general funds of the Corporation for the payment, without interest, of the redemption price.
E. Purchase of Series 7 Preferred Stock. Subject to applicable law and the limitation on purchases when dividends on the Series 7 Preferred Stock are in arrears, the Corporation may, at any time and from time to time, purchase any Series 7 Preferred Stock in the open market, by tender or by private agreement.
F. Status of Redeemed Stock. Any Series 7 Preferred Stock that shall at any time have been redeemed, or that the Corporation otherwise acquires, shall after such redemption or acquisition, have the status of authorized but unissued Preferred Stock, without designation as to class or series until such shares are once more designated as part of a particular class or series by the Board of Directors.
Section 6. Special Optional Redemption.
A. Upon the occurrence of a Change of Control (as defined below), the Corporation will have the option upon written notice mailed by the Corporation, postage pre-paid, no less than 30 nor more than 60 days prior to the redemption date and addressed to the holders of record of the Series 7 Preferred Stock to be redeemed at their respective addresses as they appear on the share transfer records of the Corporation, to redeem the Series 7 Preferred Stock, in whole or in part within 120 days after the first date on which such Change of Control occurred, for cash at twenty-five dollars ($25.00) per share plus accrued and unpaid dividends, if any, to, but not including, the redemption date (“Special Optional Redemption Right”). No failure to give such notice or any defect thereto or in the mailing thereof shall affect the validity of the proceedings for the redemption of any Series 7 Preferred Stock except as to the holder to whom notice was defective or not given. If, prior to the Change of Control Conversion Date (as defined below), the Corporation has provided or provides notice of redemption with respect to the Series 7 Preferred Stock (whether pursuant to the optional redemption right under Section 5 or the Special Optional Redemption Right under this Section 6), the holders of Series 7 Preferred Stock will not have the conversion right described below in Section 8.
A “Change of Control” is when, after the original issuance of the Series 7 Preferred Stock, the following have occurred and are continuing:
(a)the acquisition by any person, including any syndicate or group deemed to be a “person” under Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of beneficial ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or series of purchases, mergers or other acquisition transactions of shares of the Corporation entitling that person to
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exercise more than 50% of the total voting power of all shares of the Corporation entitled to vote generally in elections of directors (except that such person will be deemed to have beneficial ownership of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition), and
(b)following the closing of any transaction referred to in (a) above, neither the Corporation nor the acquiring or surviving entity has a class of common securities (or American Depositary Receipts representing such securities) listed on the New York Stock Exchange (the “NYSE”), the NYSE MKT, or the NASDAQ Stock Market (“NASDAQ”), or listed or quoted on an exchange or quotation system that is a successor to the NYSE, the NYSE MKT or NASDAQ.
B. In addition to any information required by law or by the applicable rules of any exchange upon which the Series 7 Preferred Stock may be listed or admitted to trading, such notice shall state: (a) the redemption date; (b) the redemption price; (c) the number of shares of Series 7 Preferred Stock to be redeemed; (d) the place or places where the certificates for the Series 7 Preferred Stock, to the extent Series 7 Preferred Stock are certificated, are to be surrendered (if so required in the notice) for payment of the redemption price; (e) that the shares of Series 7 Preferred Stock are being redeemed pursuant to the Special Optional Redemption Right in connection with the occurrence of a Change of Control and a brief description of the transaction or transactions constituting such Change of Control; (f) that holders of the Series 7 Preferred Stock to which the notice relates will not be able to tender such Series 7 Preferred Stock for conversion in connection with the Change of Control and each Series 7 Preferred Share tendered for conversion that is selected, prior to the Change of Control Conversion Date, for redemption will be redeemed on the related redemption date instead of converted on the Change of Control Conversion Date; and (g) that dividends on the Series 7 Preferred Stock to be redeemed will cease to accrue on such redemption date. If fewer than all of the Series 7 Preferred Stock held by any holder are to be redeemed, the notice mailed to such holder shall also specify the number of shares of Series 7 Preferred Stock held by such holder to be redeemed.
If fewer than all of the outstanding shares of Series 7 Preferred Stock are to be redeemed pursuant to the Special Optional Redemption Right, the shares to be redeemed shall be selected pro rata (as nearly as practicable without creating fractional shares) or by lot or in such other equitable method prescribed by the Corporation. If such redemption is to be by lot and, as a result of such redemption, any holder of Series 7 Preferred Stock would become a holder of a number of Series 7 Preferred Stock in excess of the Ownership Limit because such holder's shares of Series 7 Preferred Stock were not redeemed, or were only redeemed in part then, except as otherwise provided in the Articles, the Corporation will redeem the requisite number of shares of Series 7 Preferred Stock of such holder such that no holder will hold in excess of the Ownership Limit subsequent to such redemption.
C. Notwithstanding anything to the contrary contained herein, unless full cumulative dividends on all Series 7 Preferred Stock and other equity securities ranking on a parity with the Series 7 Preferred Stock as to dividends shall have been or contemporaneously are authorized and declared and paid or authorized and declared and a sum sufficient for the payment thereof set apart for payment for all past dividend periods and the then current dividend period, no shares of Series 7 Preferred Stock or other equity securities ranking on a parity with the Series 7 Preferred Stock shall be redeemed unless all outstanding shares of Series 7 Preferred Stock and other equity securities ranking on parity with the Series 7 Preferred Stock are simultaneously redeemed; provided, however, that the foregoing shall not prevent the purchase by the Corporation of Series 7 Preferred Stock pursuant to Article V of the Articles or otherwise in order to ensure that the Corporation remains qualified as a REIT for federal income tax purposes or the purchase or acquisition of Series 7 Preferred Stock pursuant to a purchase or exchange offer made on the same terms to holders of all Series 7 Preferred Stock and other equity securities ranking on parity with the Series 7 Preferred Stock. In addition, unless full cumulative dividends on all Series 7 Preferred Stock and other equity securities ranking on a parity with the Series 7 Preferred Shares have been or contemporaneously are authorized and declared and paid or authorized and declared and a sum sufficient for the payment thereof set apart for payment for all past dividend periods and the then current dividend period, the Corporation shall not purchase or otherwise acquire directly or indirectly for any consideration, nor shall any monies be paid to or be made available for a sinking fund for the redemption of, any Series 7 Preferred Stock and other equity securities ranking on a parity with the Series 7 Preferred Stock (except by conversion into or exchange for equity securities of the Corporation ranking junior to the Series 7 Preferred Stock as to dividends and upon liquidation or by redemption or other acquisition of shares under incentive, benefit or share purchase plans for officers, trustees or employees or others performing or providing similar services); provided, however, that the foregoing shall not prevent any purchase or acquisition of Series 7 Preferred Stock for the purpose of preserving the Corporation's status as a REIT or pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding Series 7 Preferred Stock and Parity Preferred Stock.
D. Immediately prior to any redemption of Series 7 Preferred Stock pursuant to the Special Optional Redemption Right, the Corporation shall pay, in cash, any accumulated and unpaid dividends to, but not including, the redemption date, unless a redemption date falls after a Dividend Record Date and prior to the corresponding Dividend Payment Date, in which
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case each holder of Series 7 Preferred Stock at the close of business on such Dividend Record Date shall be entitled to the dividend payable on such shares on the corresponding Dividend Payment Date (including any accrued and unpaid dividends for prior periods) notwithstanding the redemption of such shares before such Dividend Payment Date. Except as provided above, the Corporation will make no payment or allowance for unpaid dividends, whether or not in arrears, on Series 7 Preferred Stock for which a notice of redemption has been given.
E. If the Corporation shall so require and the notice shall so state, on or after the redemption date, each holder of Series 7 Preferred Stock to be redeemed shall present and surrender the certificates evidencing her Series 7 Preferred Stock, to the extent such shares are certificated, to the Corporation at the place designated in the notice of redemption and thereupon the redemption price of such shares (including all accumulated and unpaid dividends to, but not including, the redemption date, except otherwise provided in Section 6(D)) shall be paid to or on the order of the person whose name appears on such certificate evidencing Series 7 Preferred Stock as the owner thereof and each surrendered certificate shall be canceled. If fewer than all the shares evidenced by any such certificate evidencing Series 7 Preferred Stock are to be redeemed, a new certificate shall be issued evidencing the unredeemed shares. In the event that the Series 7 Preferred Stock to be redeemed are uncertificated, such shares shall be redeemed in accordance with the notice and the applicable procedures of any depository and no further action on the part of the holders of such shares shall be required.
F. If the Corporation shall so require and the notice shall so state, on or after the redemption date, each holder of Series 7 Preferred Stock to be redeemed shall present and surrender the certificates evidencing her Series 7 Preferred Stock, to the extent such shares are certificated, to the Corporation at the place designated in the notice of redemption and thereupon the redemption price of such shares (including all accumulated and unpaid dividends to, but not including, the redemption date, except otherwise provided in Section 6(D)) shall be paid to or on the order of the person whose name appears on such certificate evidencing Series 7 Preferred Stock as the owner thereof and each surrendered certificate shall be canceled. If fewer than all the shares evidenced by any such certificate evidencing Series 7 Preferred Stock are to be redeemed, a new certificate shall be issued evidencing the unredeemed shares. In the event that the Series 7 Preferred Stock to be redeemed are uncertificated, such shares shall be redeemed in accordance with the notice and the applicable procedures of any depository and no further action on the part of the holders of such shares shall be required.
G. Any Series 7 Preferred Stock that shall at any time have been redeemed shall, after such redemption, have the status of authorized but unissued Preferred Stock, without designation as to series until such shares are once more classified and designated as part of a particular series by the Board of Directors.
Section 7. Voting Rights.
A. General. Holders of the Series 7 Preferred Stock will not have any voting rights, except as set forth below or as required by the FBCA.
B. Voting Power. For purposes of this Section 7, “Parity Voting Securities” means the Series 7 Preferred Stock, the Series 6 Preferred Stock, the Series 5 Preferred Stock and all classes or series of Preferred Stock, (i) which are on parity with the Series 7 Preferred Stock as to dividends and/or rights upon liquidation, dissolution or winding up, (ii) upon which like voting rights have been conferred and are exercisable as to the matter in question to be submitted to a vote, and (iii) which would be affected in the same or substantially similar way by such matter. When Parity Voting Securities are entitled to vote on a matter, they shall vote together as a single class without regard to series, and each holder of record of Parity Voting Securities shall be entitled to one vote for each $25.00 liquidation preference (excluding amounts in respect of accumulated and unpaid distributions), except that if any Parity Voting Securities were issued for an amount less than their liquidation preference, the holders thereof shall be entitled to one vote for each $25.00 of issuance price in lieu of one vote for each $25.00 of liquidation preference.
C. Right to Elect Directors.
(i)If at any time dividends on the Series 7 Preferred Stock shall be in arrears (which means that, as to any such quarterly dividends, the same have not been paid in full) with respect to six (6) prior quarterly dividend payment periods, whether or not consecutive (a "Preferred Dividend Default"), the holders of record of Series 7 Preferred Stock, voting together as a single class with the holders of each other class or series of Parity Voting Securities, will be entitled to elect two additional directors to serve on the Corporation's Board of Directors (the "Preferred Stock Directors") at a special meeting called in accordance with Section 7(C)(ii) or at the next annual meeting of stockholders, and at each subsequent annual meeting of stockholders or special meeting held in place thereof. This voting right will vest, and any such nominated directors will serve, until all such accrued and unpaid dividends on the Series 7 Preferred Stock and each such class or series of Parity Voting Securities have been paid in full, or a sufficient sum set aside for payment thereof.
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(ii)At any time when such voting rights shall have vested, a proper officer of the Corporation shall call or cause to be called, upon written request of holders of record of at least 10% of the outstanding shares of Series 7 Preferred Stock, a special meeting of the holders of record of Parity Voting Securities by mailing or causing to be mailed to such holders a notice of such special meeting to be held not less than ten and not more than 45 days after the date such notice is given. At any annual or special meeting at which Parity Voting Securities are entitled to vote, all of the holders of the Parity Voting Securities, by a plurality of the votes, and not cumulatively, will be entitled to elect two directors. The holders of the Parity Voting Securities represent-ing the lesser of one‑third of the total voting power of the Parity Voting Securities then outstanding, present in person or by proxy or the quorum required for a vote of the holders of Common Stock, will constitute a quorum for the election of the Preferred Stock Directors except as otherwise provided by law. Notice of all meetings at which holders of record of the Series 7 Preferred Stock shall be entitled to vote will be given to such holders at their addresses as they appear in the transfer records. At any such meeting or adjournment thereof in the absence of a quorum, subject to the provisions of any applicable law, the holders of the Parity Voting Securities representing a majority of the voting power of the Parity Voting Securities present in person or by proxy shall have the power to adjourn the meeting for the election of the Preferred Stock Directors, without notice other than an announcement at the meeting, until a quorum is present. If a Preferred Dividend Default shall terminate after the notice of an annual or special meeting has been given but before such meeting has been held, the Corporation shall, as soon as practicable after such termination, mail or cause to be mailed notice of such termination to holders of the Series 7 Preferred Stock that would have been entitled to vote at such meeting.
(iii)If and when all accrued and unpaid dividends on the Series 7 Preferred Stock shall have been paid in full or a sum sufficient for such payment is irrevocably deposited in trust for payment, the holders of the Series 7 Preferred Stock shall be divested of the voting rights set forth in Section 7(C) herein (subject to revesting in the event of each and every Preferred Dividend Default) and, if all accrued and unpaid dividends have been paid in full or set aside for payment in full on all other classes or series of Parity Voting Securities, the term and office of each Preferred Stock Director so elected shall terminate. Any Preferred Stock Director may be removed at any time with or without cause by the vote of, and shall not be removed otherwise than by the vote of, the holders of record of a majority of the voting power of the Parity Voting Securities. So long as a Preferred Dividend Default shall continue, any vacancy in the office of a Preferred Stock Director may be filled by written consent of the Preferred Stock Director remaining in office, or if none remains in office, by a vote of the holders of record of a majority of the outstanding Series 7 Preferred Stock (voting separately as a single class with all other classes or series of Parity Voting Securities). The Preferred Stock Directors shall each be entitled to one vote per director on any matter.
D. Certain Voting Rights. In addition to any other vote required by the FBCA, so long as any Series 7 Preferred Stock remains outstanding and subject to the last sentence of this Section 7(D), the Corporation shall not, without the affirmative vote of the holders of record of at least two-thirds of the voting power entitled to be cast by the holders of Series 7 Preferred Stock and the holders of other Parity Voting Securities upon which like voting rights have been conferred and are exercisable, voting together as a single class:
(i)amend the Articles to designate or create, or increase the author-ized amount of, any class or series of shares ranking senior to the Series 7 Preferred Stock (“Senior Shares”) or reclassify any authorized shares of the Corporation into any Senior Shares; provided that no such vote shall be required if:
(a)at or prior to the time any such event is to take place, provision is made for the redemption of all shares of Series 7 Preferred Stock, so long as no portion of the redemption price will be paid from the proceeds from the sale of such Senior Shares; or
(b)the holders of Series 7 Preferred Stock have previously voted pursuant to this Section 7(D) to grant authority to the Board of Directors to create Senior Shares pursuant to Section 607.0602 of the FBCA;
(ii)amend, alter or repeal the provisions of the Corporation's Articles (including these Articles of Amendment) or Bylaws, whether in connection with a merger, consolidation, transfer or lease of the Corporation's assets substantially as an entirety, or otherwise (an “Event”), in each case in a manner that would materially and adversely affect the powers, special rights, preferences, privileges or voting power of the holders of Series 7 Preferred Stock; provided, however, that:
(x) with respect to the occurrence of any Event, so long as (a) the Corporation is the surviving entity and the Series 7 Preferred Stock remains outstanding with the terms thereof unchanged, or (b) the resulting, surviving or transferee entity is a corporation organized under the laws of any state and substitutes
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for the Series 7 Preferred Stock other preferred stock having substantially the same terms and same rights as the Series 7 Preferred Stock, including with respect to distributions, voting rights and rights upon liquidation, dissolution or winding-up, then the occurrence of any such Event shall not be deemed to materially and adversely affect such rights, privileges or voting powers of the holders of the Series 7 Preferred Stock and no vote of the Series 7 Preferred Stock shall be required in such case;
(y) any increase in the amount of authorized Preferred Stock or the creation or issuance of any other class or series of Preferred Stock, or any increase in an amount of authorized shares of each class or series, in each case ranking either junior to or on a parity with the Series 7 Preferred Stock shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting powers for purposes of this Section 7(D)(ii); and
(z) if any event in Section 7(D)(ii) would materially and adversely affect the powers, special rights, preferences, privileges or voting power of the Series 7 Preferred Stock that are not enjoyed by some or all of the other classes or series of Parity Voting Securities, the affirmative vote of the holders of record of two-thirds of the voting power entitled to be cast by the holders of all series similarly affected shall be required in lieu of the affirmative vote of the holders of two-thirds of the voting power entitled to be cast by the holders of the Parity Voting Securities.
In addition, so long as any Series 7 Preferred Stock remains outstanding, the Corporation shall not amend the Articles to increase the number of shares of authorized Preferred Stock (unless such shares are junior to the Series 7 Preferred Stock) without the affirmative vote of the holders of record of at least a majority of the voting power entitled to be cast by the holders of Series 7 Preferred Stock and the holders of other Parity Voting Securities upon which like voting rights have been conferred and are exercisable, voting separately as single class.
Section 8. Conversion. Series 7 Preferred Stock are not convertible into or exchangeable for any other property or securities of the Corporation, except as provided in this Section 8.
A. Upon the occurrence of a Change of Control, each holder of Series 7 Preferred Stock shall have the right, unless, prior to the Change of Control Conversion Date, the Corporation has provided or provides notice of its election to redeem the Series 7 Preferred Stock pursuant to the Redemption Right or Special Optional Redemption Right, to convert some or all of the Series 7 Preferred Stock held by such holder (the “Change of Control Conversion Right”) on the Change of Control Conversion Date into a number of shares of Common Stock per share of Series 7 Preferred Stock to be converted (the “Common Stock Conversion Consideration”) equal to the lesser of (A) the quotient obtained by dividing (i) the sum of (x) the $25.00 liquidation preference plus (y) the amount of any accrued and unpaid dividends to, but not including, the Change of Control Conversion Date (unless the Change of Control Conversion Date is after a Dividend Record Date and prior to the corresponding Dividend Payment Date, in which case no additional amount for such accrued and unpaid dividend will be included in such sum) by (ii) the Common Stock Price (as defined below) and (B) 1.0419 (the “Share Cap”), subject to the immediately succeeding paragraph.
The Share Cap is subject to pro rata adjustments for any share splits (including those effected pursuant to a Common Stock distribution), subdivisions or combinations (in each case, a “Share Split”) with respect to Common Stock as follows: the adjusted Share Cap as the result of a Share Split shall be the number of Common Stock that is equivalent to the product obtained by multiplying (i) the Share Cap in effect immediately prior to such Share Split by (ii) a fraction, the numerator of which is the number of shares of Common Stock outstanding after giving effect to such Share Split and the denominator of which is the number of shares of Common Stock outstanding immediately prior to such Share Split.
For the avoidance of doubt, subject to the immediately succeeding sentence, the aggregate number of shares of Common Stock (or equivalent Alternative Conversion Consideration (as defined below), as applicable) issuable in connection with the exercise of the Change of Control Conversion Right shall not exceed 3,125,700 shares of Common Stock (or equivalent Alternative Conversion Consideration, as applicable) (the “Exchange Cap”). The Exchange Cap is subject to pro rata adjustments for any Share Splits on the same basis as the corresponding adjustment to the Share Cap.
In the case of a Change of Control pursuant to which shares of Common Stock shall be converted into cash, securities or other property or assets (including any combination thereof) (the “Alternative Form Consideration”), a holder of Series 7 Preferred Stock shall receive upon conversion of such Series 7 Preferred Stock the kind and amount of Alternative Form Consideration which such holder of Series 7 Preferred Stock would have owned or been entitled to receive upon the Change of Control had such holder of Series 7 Preferred Stock held a number of shares of Common Stock equal to the Common Stock Conversion Consideration immediately prior to the effective time of the Change of Control (the “Alternative Conversion
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Consideration”; and the Common Stock Conversion Consideration or the Alternative Conversion Consideration, as may be applicable to a Change of Control, shall be referred to herein as the “Conversion Consideration”).
In the event that holders of Common Stock have the opportunity to elect the form of consideration to be received in the Change of Control, the consideration that the holders of Series 7 Preferred Stock shall receive shall be the form and proportion of the aggregate consideration elected by the holders of the Common Stock who participate in the determination (based on the weighted average of elections) and shall be subject to any limitations to which all holders of Common Stock are subject, including, without limitation, pro rata reductions applicable to any portion of the consideration payable in the Change of Control.
The “Change of Control Conversion Date” shall be a Business Day set forth in the notice of Change of Control provided in accordance with Section 8(C) below that is no less than 20 days nor more than 35 days after the date on which the Corporation provides such notice pursuant to Section 8(C).
The “Common Stock Price” shall be (i) the amount of cash consideration per Common Stock, if the consideration to be received in the Change of Control by holders of Common Stock is solely cash, and (ii) the average of the closing prices per share of Common Stock on the NYSE for the ten consecutive trading days immediately preceding, but not including, the effective date of the Change of Control, if the consideration to be received in the Change of Control by holders of Common Stock is other than solely cash.
B. No fractional Common Stock shall be issued upon the conversion of Series 7 Preferred Stock. In lieu of fractional shares, holders shall be entitled to receive the cash value of such fractional shares based on the Common Stock Price.
C. Within 15 days following the occurrence of a Change of Control, a notice of occurrence of the Change of Control, describing the resulting Change of Control Conversion Right, shall be delivered to the holders of record of the Series 7 Preferred Stock at their addresses as they appear on the Corporation's share transfer records and notice shall be provided to the Corporation's transfer agent. No failure to give such notice or any defect thereto or in the mailing thereof shall affect the validity of the proceedings for the conversion of any Series 7 Preferred Stock except as to the holder to whom notice was defective or not given. Each notice shall state: (a) the events constituting the Change of Control; (b) the date of the Change of Control; (c) the last date on which the holders of Series 7 Preferred Stock may exercise their Change of Control Conversion Right; (d) the method and period for calculating the Common Stock Price; (e) the Change of Control Conversion Date, which shall be a Business Day occurring within 20 to 35 days following the date of such notice; (f) that if, prior to the Change of Control Conversion Date, the Corporation has provided or provides notice of its election to redeem all or any portion of the Series 7 Preferred Stock, the holder will not be able to convert such shares of Series 7 Preferred Stock and such shares of Series 7 Preferred Stock shall be redeemed on the related redemption date, even if they have already been tendered for conversion pursuant to the Change of Control Conversion Right; (g) if applicable, the type and amount of Alternative Conversion Consideration entitled to be received per share of Series 7 Preferred Stock; (h) the name and address of the paying agent and the conversion agent; and (i) the procedures that the holders of Series 7 Preferred Stock must follow to exercise the Change of Control Conversion Right.
D. The Corporation shall issue a press release for publication on the Dow Jones & Company, Inc. Business Wire, PR Newswire or Bloomberg Business News (or, if such organizations are not in existence at the time of issuance of such press release, such other news or press organization as is reasonably calculated to broadly disseminate the relevant information to the public), or post notice on the Corporation's website, in any event prior to the opening of business on the first Business Day following any date on which the Corporation provides notice pursuant to Section 8(C) above to the holders of Series 7 Preferred Stock.
E. In order to exercise the Change of Control Conversion Right, a holder of Series 7 Preferred Stock shall be required to deliver, on or before the close of business on the Change of Control Conversion Date, the certificates evidencing the Series 7 Preferred Stock, to the extent such shares are certificated, to be converted, duly endorsed for transfer, together with a written conversion notice completed, to the Corporation's transfer agent. Such notice shall state: (i) the relevant Change of Control Conversion Date; (ii) the number of shares of Series 7 Preferred Stock to be converted; and (iii) that the shares of Series 7 Preferred Stock are to be converted pursuant to the applicable terms of the Series 7 Preferred Stock. Notwithstanding the foregoing, if the shares of Series 7 Preferred Stock are held in global form, such notice shall comply with applicable procedures of The Depository Trust Company (“DTC”).
F. Holders of Series 7 Preferred Stock may withdraw any notice of exercise of a Change of Control Conversion Right (in whole or in part) by a written notice of withdrawal delivered to the Corporation's transfer agent prior to the close of business on the Business Day prior to the Change of Control Conversion Date. The notice of withdrawal must state: (i) the number of withdrawn shares of Series 7 Preferred Stock; (ii) if certificated shares of Series 7 Preferred Stock have been issued, the certificate numbers of the withdrawn shares of Series 7 Preferred Stock; and (iii) the number of shares of Series 7 Preferred
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Stock, if any, which remain subject to the conversion notice. Notwithstanding the foregoing, if the Series 7 Preferred Stock are held in global form, the notice of withdrawal shall comply with applicable procedures of DTC.
G. Series 7 Preferred Stock as to which the Change of Control Conversion Right has been properly exercised and for which the conversion notice has not been properly withdrawn shall be converted into the applicable Conversion Consideration in accordance with the Change of Control Conversion Right on the Change of Control Conversion Date, unless, prior to the Change of Control Conversion Date, the Corporation has provided or provides notice of its election to redeem such Series 7 Preferred Stock, whether pursuant to its Redemption Right or Special Optional Redemption Right. If the Corporation elects to redeem Series 7 Preferred Stock that would otherwise be converted into the applicable Conversion Consideration on a Change of Control Conversion Date, such Series 7 Preferred Stock shall not be so converted and the holders of such shares shall be entitled to receive on the applicable redemption date $25.00 per share, plus any accrued and unpaid dividends thereon to, but not including, the redemption date.
H. The Corporation shall deliver the applicable Conversion Consideration no later than the third Business Day following the Change of Control Conversion Date.
I. Notwithstanding anything to the contrary contained herein, no holder of Series 7 Preferred Stock will be entitled to convert such Series 7 Preferred Stock into Common Stock to the extent that receipt of such Common Stock would cause the holder of such Common Stock (or any other person) to Beneficially Own or Constructively Own, within the meaning of the Articles, Common Stock of the Corporation in excess of the Ownership Limit, as such term is defined in the Articles, as applicable.
Section 9. Application of Article V. The Series 7 Preferred Stock are subject to the provisions of Article V of the Articles.
Section 10. No Sinking Fund. No sinking fund shall be established for the retirement or redemption of Series 7 Preferred Stock.
Section 11. No Preemptive Rights. No holder of the Series 7 Preferred Stock of the Corporation shall, as such holder, have any preemptive rights to purchase or subscribe for additional shares of stock of the Corporation or any other security of the Corporation which it may issue or sell.FOURTH
FOURTH: The Series 7 Preferred Stock has been classified and designated by the Board of Directors under the authority contained in the Articles.
FIFTH: These Articles of Amendment have been approved by the Board of Directors in the manner and by the vote required by law.
SIXTH: The undersigned officer of the Corporation acknowledges these Articles of Amendment to be the corporate act of the Corporation and, as to all matters or facts required to be verified under oath, the undersigned officer acknowledges that to the best of the undersigned's knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties for perjury.
Signature Page Follows.
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IN WITNESS WHEREOF, the Corporation has caused this Amendment to be signed by J. Christian Leavitt, its Senior Vice President, Finance, this 16th day of August, 2012.
REGENCY CENTERS CORPORATION
By:__/s/ J. Christian Leavitt_____________
J. Christian Leavitt
Senior Vice President, Finance
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Exhibit 3.2
Regency Centers, L.P.
Amendment Dated August 23, 2012 to Fourth Amended and Restated
Agreement of Limited Partnership
Relating to 6.0% Series 7 Cumulative Redeemable Preferred Units
This Amendment (this “Amendment”) to the Fourth Amended and Restated Agreement of Limited Partnership, dated as of April 1, 2001 (as amended through the date hereof, the “Partnership Agreement”), of Regency Centers, L.P., a Delaware limited partnership (the “Partnership”), is made as of the 23rd day of August, 2012, by Regency Centers Corporation, a Florida corporation, as general partner (the “General Partner”) (all capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Partnership Agreement).
RECITALS
WHEREAS, the General Partner has sold 3,000,000 shares of the General Partner's 6.0% Series 7 Cumulative Redeemable Preferred Stock, $0.01 par value, having a liquidation preference of $25 per share (the “Series 7 Preferred Stock”);
WHEREAS, Section 4.2(b) of the Partnership Agreement provides for the issuance by the Partnership to the General Partner of Partnership Interests in the same number and having designa-tions, preferences and other rights substantially similar to the designations, preferences and other rights of shares issued by the General Partner;
WHEREAS, the General Partner will contribute the proceeds from the sale of such shares to the Partnership immediately following the closing of the sale of such shares in exchange for the Series 7 Preferred Units (as defined below);
NOW, THEREFORE, pursuant to the authority contained in Section 4.2(b) of the Partnership Agreement, the General Partner hereby amends the Partnership Agreement as follows:
Section 1. Designation and Number. A series of Preferred Units, designated the "6.0% Series 7 Cumulative Redeemable Preferred Units " (the "Series 7 Preferred Units") is hereby established. The number of Series 7 Preferred Units shall be 3,000,000.
Section 2. Rank. The Series 7 Preferred Units will, with respect to distributions and rights upon voluntary or involuntary liquidation, winding‑up or dissolution of the Partnership, rank (i) senior to all classes or series of Common Units and to all classes or series of equity securities of the Partnership now or hereafter authorized, issued or outstanding, the terms of which provide that such equity securities shall rank junior to the Series 7 Preferred Units; (ii) the 6.70% Series 5 Cumulative Redeemable Preferred Units (the “Series 5 Preferred Units”) and the 6.625% Series 6 Cumulative Redeemable Preferred Units (the “Series 6 Preferred Units”), and any class or series of equity securities of the Partnership now or hereafter authorized, issued or outstanding, the terms of which provide that such equity securities shall rank pari passu with the Series 7 Preferred Units, whether or not the dividend rates, dividend payment dates or redemption or liquidation prices per share shall be different from those of the Series 7 Preferred Units (together, the "Parity Preferred Units"); and (iii) junior to all class or series of equity securities of the Partnership now or hereafter authorized, issued or outstanding, the terms of which provide that such equity securities shall rank senior to the Series 7 Preferred Units. For purposes of this Amendment, the term "equity securities" does not include convertible debt securities, which will rank senior to the Series 7 Preferred Units prior to conversion thereof.
Section 3. Dividends.
A.Payment of Dividends. Subject to the rights of holders of Parity Preferred Units as to the payment of dividends and holders of equity securities issued after the date hereof in accordance herewith ranking senior to the Series 7 Preferred Units as to payment of dividends, holders of Series 7 Preferred Units shall be entitled to receive, when and as declared by the Board of Directors of the Partnership, out of funds legally available for the payment of dividends, cumulative preferential cash dividends at the rate per annum of 6.0% of the $25.00 liquidation preference per Series 7 Preferred Unit (equivalent to $1.50 per annum per Series 7 Preferred Unit). Such dividends shall be cumulative, shall accrue from and including the original date of issuance, and shall be payable in cash (a) quarterly (such quarterly periods for purposes of payment and accrual will be the quarterly periods ending on the dates specified in this sentence) in arrears, on or about March 31, June 30, September 30 and December 31 of each year commencing on December 31, 2012 and, (b) in the event of a redemption, on the redemption date (each a "Dividend Payment Date"); provided that if any Dividend Payment Date is not a Business Day (as defined herein), then payment of the dividend which would otherwise have been payable on such date shall be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such Business Day is in the next succeeding
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calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such Dividend Payment Date. The amount of the dividend payable for any period shall be computed on the basis of a 360-day year consisting of twelve 30-day months and for any partial dividend period, the amount of the dividend payable shall be prorated and be computed on the basis of the ratio of the actual number of days elapsed in such period to ninety (90) days. Dividends on the Series 7 Preferred Units shall be made to the holders of record of the Series 7 Preferred Units on the close of business on the first day of the month in which the Dividend Payment Date occurs, or on such other record dates to be fixed by the Board of Directors, which record dates shall be not less than 10 days and not more than 30 Business Days prior to the relevant Dividend Payment Date (each a "Dividend Record Date ").
The term "Business Day" shall mean each day, other than a Saturday or a Sunday, which is not a day on which banking institutions in New York, New York are authorized or required by law, regulation or executive order to close.
B.Limitation on Dividends. No dividend on the Series 7 Preferred Units shall be declared or paid or funds set apart for payment by the Partnership at such time as the terms and provisions of any agreement of the Partnership, including any agreement relating to its indebtedness, prohibit such declaration, payment or setting apart funds for payment or provide that such declaration, payment or setting apart funds for payment would constitute a breach thereof or a default thereunder, or if such declaration, payment or setting apart funds for payment shall be restricted or prohibited by law. Nothing in this Section 3(B) shall be deemed to modify or in any manner limit the provisions of Section 3(C) and Section 3(D).
C.Dividends Cumulative. Notwithstanding anything contained in this Section 3, dividends on the Series 7 Preferred Units will accrue whether or not the terms and provisions of any agreement of the Partnership, including any agreement relating to its indebtedness, at any time prohibit the current payment of dividends, whether or not the Partnership has earnings, whether or not there are funds legally available for the payment of such dividends, and whether or not such dividends are declared. Accrued but unpaid dividends on the Series 7 Preferred Units shall accumulate as of the Dividend Payment Date on which they first become payable. Dividends on account of arrears for any past dividend periods may be declared and paid at any time, without reference to a regular Dividend Payment Date to holders of record of the Series 7 Preferred Units on the record date fixed by the Board of Directors which date shall be not less than 10 days and not more than 30 Business Days prior to the payment date. Accrued and unpaid dividends shall not bear interest.
D.Priority as to Dividends.
(i)So long as any Series 7 Preferred Units are outstanding, no dividend or distribution of cash or other property shall be authorized, declared, paid or set apart for payment on or with respect to any class or series of Common Units or any class or series of other Units of the Partnership ranking junior to the Series 7 Preferred Units as to the payment of dividends (such Common Units or other junior Units, collectively, "Junior Units"), nor shall any cash or other property be set aside for or applied to the purchase, redemption or other acquisition for consideration of any Series 7 Preferred Units, any Parity Preferred Units with respect to dividends, or any Junior Units, unless, in each case, all dividends accumulated on all Series 7 Preferred Units and all classes and series of outstanding Parity Preferred Units with respect to dividends have been paid in full or funds have been set apart for the payment therefor for all past dividend periods. Without limiting Section 5(B) hereof, the fore-going sentence will not prohibit (i) dividends or distributions payable solely in the form of Common Units or other Junior Units, (ii) the conversion of Junior Units or Parity Preferred Units into Junior Units, (iii) acquisitions by the Partnership of the Series 7 Preferred Units, Parity Preferred Units, Junior Units or any other capital stock pursuant to Article 5 of the General Partner's Articles of Incorporation to the extent required to preserve the General Partner's status as a real estate investment trust, (iv) acquisitions of Junior Units for purposes of any employee or director benefit plan of the Partnership or any subsidiary, and (v) purchases or acquisitions of Series 7 Preferred Units pursuant to a purchase or an exchange offer that is made on the same terms to all holders of Series 7 Preferred Units.
(ii)So long as dividends have not been paid in full (or a sum sufficient for such full payment is not irrevocably deposited in trust for payment) upon the Series 7 Preferred Units and Parity Preferred Units with respect to dividends, all dividends authorized and declared on the Series 7 Preferred Units and all classes or series of outstanding Parity Preferred Units with respect to dividends shall be authorized and declared pro rata so that the amount of dividends authorized and declared per share of Series 7 Preferred Units and such other classes or series of Parity Preferred Units shall in all cases bear to each other the same ratio that accrued dividends per share on the Series 7 Preferred Units and on such other classes or series of Parity Preferred Units (which shall not include any accumulation in respect of unpaid dividends for prior dividend periods if such class or series of Parity Preferred Units does not have cumulative distribution rights) bear to each other.
E.No Further Rights. Holders of Series 7 Preferred Units shall not be entitled to any dividends or
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distributions, whether payable in cash, other property or otherwise, in excess of the full cumulative dividends described herein.
Section 4. Liquidation Preference.
A. Payment of Liquidating Distributions. Subject to the rights of holders of Parity Preferred Units with
respect to rights upon any voluntary or involuntary liquidation, dissolution or winding‑up of the Partnership and subject to equity securities ranking senior to the Series 7 Preferred Units with respect to rights upon any voluntary or involuntary liquidation, dissolution or winding‑up of the Partnership, the holders of Series 7 Preferred Units shall be entitled to receive out of the assets of the Partnership legally available for distribution or the proceeds thereof, before any payment or distributions of the assets shall be made to holders of Common Units or any other class or series of Units of the Partnership that ranks junior to the Series 7 Preferred Units as to rights upon liquidation, dissolution or winding‑up of the Partnership, a liquidation distribution in cash or property at fair market value as determined by the Board of Directors equal to the sum of (i) a liquidation preference of $25.00 per Series 7 Preferred Unit, and (ii) an amount equal to any accrued and unpaid dividends thereon, whether or not declared, to, but not including, the date of payment. In the event that, upon such voluntary or involuntary liquidation, dissolution or winding‑up, there are insufficient assets to permit full payment of liquidating distributions to the holders of Series 7 Preferred Units and any Parity Preferred Units as to rights upon liquidation, dissolution or winding‑up of the Partnership, all payments of liquidating distributions on the Series 7 Preferred Units and such Parity Preferred Units shall be made so that the payments on the Series 7 Preferred Units and such Parity Preferred Units shall in all cases bear to each other the same ratio that the respective rights of the Series 7 Preferred Units and such other Parity Preferred Units (which shall not include any accumulation in respect of unpaid dividends or distributions for prior dividend or distribution periods if such Parity Preferred Units does not have cumulative dividend or distribution rights) upon liquidation, dissolution or winding‑up of the Partnership bear to each other.
B. Notice. Written notice of any such voluntary or involuntary liquidation, dissolution or winding-up of the Partnership, stating the payment date or dates when, and the place or places where, the amounts distributable in such circumstances shall be payable, shall be given by first class mail, postage pre-paid, not less than 30 and not more than 60 days prior to the payment date stated therein, to each record holder of the Series 7 Preferred Units at the respective addresses of such holders as the same shall appear on the share transfer records of the Partnership.
C. No Further Rights. After payment of the full amount of the liquidating dividends to which they are entitled, the holders of Series 7 Preferred Units will have no right or claim to any of the remaining assets of the Partnership.
D. Consolidation, Merger or Certain Other Transactions. For the purposes of this Section 4, the sale, conveyance, lease, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the property or assets of the Partnership to, or the consolidation or merger or other business combination of the Partnership with or into, any corporation, trust or other business entity (or of any corporation, trust or other entity with or into the Partnership) shall not be deemed to constitute a liquidation, dissolution or winding-up of the Partnership.
E. Permissible Distributions. In determining whether a distribution (other than upon voluntary liquidation) by dividend, redemption or other acquisition of Units of the Partnership or otherwise is permitted under the Revised Uniform Limited Partnership Act of Delaware (the “Act”), no effect shall be given to amounts that would be needed, if the Partnership were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of holders of Units of the Partnership whose preferential rights upon dissolution are superior to those receiving the distribution.
Section 5. Redemption
A. Mandatory Redemption. The Series 7 Preferred Units may not be redeemed except to the extent that
the General Partner redeems its Series 7 Preferred Stock, in which case the Partnership shall redeem one Series 7 Preferred Unit for each share of Series 7 Preferred Stock that the General Partner redeems.
B. Status of Redeemed or Acquired Units. Any Series 7 Preferred Units that shall at any time have been redeemed, or that the Partnership otherwise acquires, shall after such redemption or acquisition, have the status of authorized but unissued Preferred Units, without designation as to class or series until such Units are once more designated as part of a particular class or series by the General Partner.
Section 6. Voting Rights. Holders of the Series 7 Preferred Units will not have any voting rights, except as required
by the Act.
Section 7. Conversion Rights. Series 7 Preferred Units are not convertible into or exchangeable for any other
property or securities of the Partnership, except to the extent that the holders of the Series 7 Preferred Stock convert the Series 7
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Preferred Stock into shares of the General Partner's Common Stock, in which case the Partnership shall convert one Series 7 Preferred Unit into the same number of Common Units that the holders of the Series 7 Preferred Stock convert the Series 7 Preferred Stock into shares of the General Partner's Common Stock. If the holders of the Series 7 Preferred Stock receive cash, securities or other property upon conversion of the Series 7 Preferred Stock, the Series 7 Preferred Units shall also convert into such cash, securities or other property.
Section 8. No Sinking Fund. No sinking fund shall be established for the retirement or redemption of Series 7
Preferred Units.
Section 9. Reaffirmation. Except as modified herein, all terms and conditions of the Partnership Agreement shall
remain in full force and effect, which terms and conditions the General Partner hereby ratifies and confirms.
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IN WITNESS WHEREOF, this Amendment has been executed as of the date first above written.
GENERAL PARTNER
REGENCY CENTERS CORPORATION
By: /s/ J. Christian Leavitt
Name: J. Christian Leavitt
Title: Senior Vice President
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Exhibit 5.2
Regency Centers Corporation
One Independent Drive
Suite 114
Jacksonville, Florida 32202
Re: | Registration Statement on Form S-3 |
6.000% Series 7 Cumulative Redeemable Preferred Stock
Ladies and Gentlemen:
This opinion is being furnished in connection with the combined Registration Statement on Form S-3 (Registration No. 333-174535) of Regency Centers Corporation (“Regency”) and Regency Centers, L.P. (“RCLP”) under the Securities Act of 1933, as amended, for the issuance of 3,000,000 shares of 6.000% Series 7 cumulative redeemable preferred stock of Regency, $0.01 par value per share (the “Series 7 Preferred Shares”).
In connection with the issuance of such securities, we have examined and are familiar with: (a) the articles of incorporation and bylaws of Regency, as presently in effect, (b) the proceedings of and actions taken by the Board of Directors of Regency and a duly authorized committee of the Board of Directors in connection with the issuance of the Series 7 Preferred Shares and (c) such other records, certificates and documents as we have considered necessary or appropriate for purposes of this opinion.
Based on the documents set forth above, we are of the opinion that the Series 7 Preferred Shares have been duly authorized, and when duly issued and delivered against payment therefor, will be legally issued, fully paid and nonassessable.
The foregoing opinion is limited to the laws of the state of Florida. We assume no obligation to supplement this opinion letter if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinions expressed herein after the date hereof.
We hereby consent to the inclusion of this opinion as Exhibit 5.2 in said Registration Statement and to the reference to this firm under the caption “Validity of Securities” in the prospectus supplement relating to the offering of the Series 7 Preferred Shares dated August 14, 2012. In giving this consent we do not hereby admit that we come within the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules or regulations of the Securities and Exchange Commission promulgated thereunder.Sincerely,
FOLEY & LARDNER LLP
Exhibit 8.2
Regency Centers Corporation
One Independent Dr.
Suite 114
Jacksonville, FL 32202
Re: | Registration Statement on Form S-3 |
6.000% Series 7 Cumulative Redeemable Preferred Stock
Ladies and Gentlemen
You have requested our opinions as tax counsel to Regency Centers Corporation (the “Company”) concerning the federal income tax consequences in connection with the registration statement on Form S-3 (Registration No. 333-174535) (the “Registration Statement”) and with respect to qualification of the Company as a real estate investment trust (a “REIT”) for federal income tax purposes, for the issuance of 3,000,000 shares of the Company's 6.000% Series 7 cumulative redeemable preferred stock, $0.01 par value per share (the “Series 7 Preferred Shares”).
In connection with the opinions rendered below, we have reviewed the Registration Statement, including the prospectus supplement dated August 14, 2012 relating to the sale of the Series 7 Preferred Shares (the “Prospectus Supplement”) and the Prospectus dated May 26, 2011 (the “Prospectus”), the articles of incorporation and bylaws of the Company and such other documents that we deemed relevant. The opinions expressed in this letter are based upon certain factual representations set forth in the Prospectus and in certificates of officers of the Company.
In connection with the opinions rendered below, we have assumed generally that:
1.each of the documents referred to above has been duly authorized, executed, and delivered; is authentic, if an original, or is accurate, if a copy; and has not been amended;
2.during its short taxable year ended December 31, 1993 and subsequent taxable years, the Company has operated and will continue to operate in such a manner that makes and will continue to make the factual representations contained in a certificate, dated as of the date hereof and executed by a duly appointed officer of the Company (the “Officer's Certificate”), true for such years;
3.the Company will not make any amendments to its organizational documents or to the organizational documents of Regency Realty Group, Inc., a Florida corporation (“Management Company”), after the date of this opinion that would affect its qualification as a REIT for any taxable year;
4.no actions will be taken by the Company or Management Company after the date hereof that would have the effect of altering the facts upon which the opinion set forth below is based.
In connection with the opinions rendered below, we also have relied upon the correctness of the factual representations contained in the Officer's Certificate.
Based solely on the documents and assumptions set forth above and the factual representations set forth in the Officer's Certificate, and without further investigation, we are of the opinion that the summaries set forth in the Prospectus Supplement under the caption “Additional Federal Income Tax Considerations” are accurate in all material respects as to matters of law and legal conclusions. In addition, based upon and subject to the foregoing, we confirm our specific opinions in the Prospectus under the caption “Certain Material Federal Income Tax Considerations”.
The foregoing opinions are based on current provisions of the Internal Revenue Code of 1986, as amended (the “Code”), and the Treasury regulations thereunder (the “Regulations”), published administrative interpretations thereof, and published court decisions, all of which are subject to change either prospectively or retroactively. The Internal Revenue Service has not issued Regulations or administrative interpretations with respect to various provisions of the Code relating to REIT qualification. No assurance can be given that the law will not change in a way that will prevent the Company from qualifying as a REIT or that may change the other legal conclusions stated herein.
The foregoing opinion is limited to the U.S. federal income tax matters addressed herein, and no other opinions are rendered with respect to other federal tax matters or to any issues arising under the tax laws of any other country, or any state or locality. We undertake no obligation to update the opinion expressed herein after the date of this letter.
We hereby consent to the inclusion of this opinion as Exhibit 8.2 in said Registration Statement and to the reference to this firm under the caption “Legal Matters” in the Prospectus. In giving this consent we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules or regulations of the Securities and Exchange Commission promulgated thereunder.
Sincerely,
FOLEY & LARDNER LLP
Exhibit 12.1
RCC Ratios of Earnings to Combined Fixed Charges and Preferred Stock Dividends
For the six months ended June 30, 2012 | For the year ended December 31, | |||||||||||
2011 | 2010 | 2009 | 2008 | 2007 | ||||||||
Ratio of earnings to combined fixed charges and preferred stock dividends (1) | 1.2 | 1.4 | 1.1 | 0.8 | 1.5 | 1.9 | ||||||
(1) The ratios of earnings to fixed charges and preferred stock dividend is computed by dividing earnings by the sum of fixed charges and preferred stock dividend. The term “fixed charges” includes the sum of the following: (a) interest, whether expensed or capitalized, from both continuing and discontinued operations, (b) amortization of premiums, discounts and capitalized expenses related to indebtedness, (c) an estimate of the interest within rental expense, and (d) preference security dividend requirements of consolidated subsidiaries. The term “earnings” is the amount resulting from adding (a) pre-tax income from continuing operations before adjustment for income or loss from equity investees and noncontrolling interests in consolidated subsidiaries, (b) fixed charges, (c) amortization of capitalized interest, (d) distributed income of equity investees, and (e) share of pre-tax losses of equity investees for which charges arising from guarantees are included in fixed charges; then subtracting from the total of added items, the following: (a) capitalized interest, (b) preference security dividend requirements of consolidated subsidiaries, and (c) noncontrolling interest in pre-tax income of subsidiaries that have not incurred fixed charges.
(amounts in thousands) | For the six months ended June 30, 2012 | Year Ended December 31, | ||||||||||||||||
2011 | 2010 | 2009 | 2008 | 2007 | ||||||||||||||
Fixed Coverage Ratio: | ||||||||||||||||||
Add: pre-tax income from continuing operations before adjustment for income or loss from equity investees and noncontrolling interests in consolidated subsidiaries | $ | 14,608 | 37,695 | 10,065 | (14,978 | ) | 111,858 | 160,271 | ||||||||||
Add: fixed charges | 73,577 | 153,648 | 158,560 | 157,888 | 159,192 | 146,356 | ||||||||||||
Add: distributed income of equity investees | 17,580 | 43,360 | 41,054 | 31,252 | 30,731 | 30,547 | ||||||||||||
Subtract: capitalized interest | (1,246 | ) | (1,480 | ) | (5,099 | ) | (19,062 | ) | (36,511 | ) | (35,424 | ) | ||||||
Subtract: preferred stock dividends | (12,744 | ) | (23,400 | ) | (23,400 | ) | (23,400 | ) | (23,400 | ) | (23,400 | ) | ||||||
Subtract: noncontrolling interest in pre-tax income of subsidiaries that have not incurred fixed charges | (35 | ) | (55 | ) | (66 | ) | (59 | ) | (41 | ) | (869 | ) | ||||||
Earnings | $ | 91,740 | 209,768 | 181,114 | 131,641 | 241,829 | 277,481 | |||||||||||
Fixed Charge Data: | ||||||||||||||||||
Interest expensed and capitalized | $ | 57,765 | 124,707 | 129,837 | 128,551 | 131,009 | 118,987 | |||||||||||
Amortized premiums, discounts and capitalized expenses related to indebtedness | 1,728 | 2,861 | 2,957 | 3,517 | 2,981 | 1,987 | ||||||||||||
Estimate of the interest within rental expense | 1,340 | 2,680 | 2,366 | 2,420 | 1,802 | 1,982 | ||||||||||||
Preferred stock dividends | 12,744 | 23,400 | 23,400 | 23,400 | 23,400 | 23,400 | ||||||||||||
Total fixed charges | $ | 73,577 | 153,648 | 158,560 | 157,888 | 159,192 | 146,356 | |||||||||||
Ratio of earnings to fixed charges | 1.2 | 1.4 | 1.1 | 0.8 | (2) | 1.5 | 1.9 | |||||||||||
(2) The Company's ratio of earnings to fixed charges was deficient in 2009 by $26.2 million, due to significant non-cash charges for impairment of real estate investments recorded in 2009 of $97.5 million.