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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 20)
---------------------------
REGENCY CENTERS CORPORATION
(FORMERLY REGENCY REALTY CORPORATION)
(Name of Issuer)
COMMON STOCK, PAR VALUE $0.01 PER SHARE 758849 10 3
(Title of class of securities) (CUSIP number)
BRIAN T. MCANANEY, ESQ.
GENERAL ELECTRIC CAPITAL CORPORATION
260 LONG RIDGE ROAD
STAMFORD, CONNECTICUT 06927
(203) 357-4000
(Name, address and telephone number of person authorized
to receive notices and communications)
JUNE 18, 2003
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[ ].
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. SEE Rule 13d-7(b) for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purposes of Section 18 of the Securities Exchange Act of
1934 (the "Act") or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act. (However, see the
Notes.)
(Continued on following pages)
(Page 1 of 20 pages)
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1
- ---------------------------- ---------------------------------------- -------------------------------------------------
CUSIP number 758849 10 3 13D Page 2 of 20 Pages
- ---------------------------- ---------------------------------------- -------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------- ----------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON: SECURITY CAPITAL GROUP INCORPORATED
S.S. OR I.R.S. IDENTIFICATION NO. 36-3692698
OF ABOVE PERSON:
- ------------------- ----------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ]
(b) [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------- ----------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: BK, OO
- ------------------- ----------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: MARYLAND
- ------------------- -------- ------- -----------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 20,000,000 SHARES OF COMMON STOCK (SUBJECT TO
SHARES AGREEMENT REGARDING VOTING OF SHARES DESCRIBED
IN ITEM 4)
------- -----------------------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER:
OWNED BY
------- -----------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 20,000,000 SHARES OF COMMON STOCK
REPORTING
------- -----------------------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER:
- ------------------- -------------------------------------------------------------- -------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: 20,000,000 SHARES OF COMMON STOCK
- ------------------- ----------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 35.8%
- ------------------- ----------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: CO
- ------------------- ----------------------------------------------------------------------------------------------------------------
2
- ---------------------------- ---------------------------------------- -------------------------------------------------
CUSIP number 758849 10 3 13D Page 3 of 20 Pages
- ---------------------------- ---------------------------------------- -------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------- ----------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON: SC CAPITAL INCORPORATED
S.S. OR I.R.S. IDENTIFICATION NO. 74-2985638
OF ABOVE PERSON:
- ------------------- ----------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ]
(b) [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------- ----------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: BK, OO
- ------------------- ----------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: NEVADA
- ------------------- -------- ------- -----------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 20,000,000 SHARES OF COMMON STOCK (SUBJECT TO
SHARES AGREEMENT REGARDING VOTING OF SHARES DESCRIBED
IN ITEM 4)
------- -----------------------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER:
OWNED BY
------- -----------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 20,000,000 SHARES OF COMMON STOCK
REPORTING
------- -----------------------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER:
- ------------------- ----------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: 20,000,000 SHARES OF COMMON STOCK
- ------------------- ----------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 35.8%
- ------------------- ----------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: CO
- ------------------- ----------------------------------------------------------------------------------------------------------------
3
- ---------------------------- ---------------------------------------- -------------------------------------------------
CUSIP number 758849 10 3 13D Page 4 of 20 Pages
- ---------------------------- ---------------------------------------- -------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------- ----------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON: SC REALTY INCORPORATED
S.S. OR I.R.S. IDENTIFICATION NO. 88-0330184
OF ABOVE PERSON:
- ------------------- ----------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ]
(b) [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------- ----------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: BK, OO
- ------------------- ----------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: NEVADA
- ------------------- -------- ------- -----------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 20,000,000 SHARES OF COMMON STOCK (SUBJECT TO
SHARES AGREEMENT REGARDING VOTING OF SHARES DESCRIBED
IN ITEM 4)
------- -----------------------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER:
OWNED BY
------- -----------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 20,000,000 SHARES OF COMMON STOCK
REPORTING
------- -----------------------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER:
- ------------------- ----------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: 20,000,000 SHARES OF COMMON STOCK
- ------------------- ----------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 35.8%
- ------------------- ----------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: CO
- ------------------- ----------------------------------------------------------------------------------------------------------------
4
- ---------------------------- ---------------------------------------- -------------------------------------------------
CUSIP number 758849 10 3 13D Page 5 of 20 Pages
- ---------------------------- ---------------------------------------- -------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------- ----------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON: SECURITY CAPITAL OPERATIONS
INCORPORATED
S.S. OR I.R.S. IDENTIFICATION NO. 52-2146697
OF ABOVE PERSON:
- ------------------- ----------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ]
(b) [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------- ----------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: BK, OO
- ------------------- ----------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: MARYLAND
- ------------------- -------- ------- -----------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 20,000,000 SHARES OF COMMON STOCK (SUBJECT TO
SHARES AGREEMENT REGARDING VOTING OF SHARES DESCRIBED
IN ITEM 4)
------- -----------------------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER:
OWNED BY
------- -----------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 20,000,000 SHARES OF COMMON STOCK
REPORTING
------- -----------------------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER:
- ------------------- ----------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: 20,000,000 SHARES OF COMMON STOCK
- ------------------- ----------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 35.8%
- ------------------- ----------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: CO
- ------------------- ----------------------------------------------------------------------------------------------------------------
5
- ---------------------------- ---------------------------------------- -------------------------------------------------
CUSIP number 758849 10 3 13D Page 6 of 20 Pages
- ---------------------------- ---------------------------------------- -------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------- ----------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON: SECURITY CAPITAL SHOPPING MALL
BUSINESS TRUST
S.S. OR I.R.S. IDENTIFICATION NO. 74-2869169
OF ABOVE PERSON:
- ------------------- ----------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ]
(b) [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------- ----------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: BK, OO
- ------------------- ----------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: MARYLAND
- ------------------- -------- ------- -----------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 20,000,000 SHARES OF COMMON STOCK (SUBJECT TO
SHARES AGREEMENT REGARDING VOTING OF SHARES DESCRIBED
IN ITEM 4)
------- -----------------------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER:
OWNED BY
------- -----------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 20,000,000 SHARES OF COMMON STOCK
REPORTING
------- -----------------------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER:
- ------------------- ----------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: 20,000,000 SHARES OF COMMON STOCK
- ------------------- ----------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 35.8%
- ------------------- ----------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: CO
- ------------------- ----------------------------------------------------------------------------------------------------------------
6
- ---------------------------- ---------------------------------------- -------------------------------------------------
CUSIP number 758849 10 3 13D Page 7 of 20 Pages
- ---------------------------- ---------------------------------------- -------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------- ----------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON: GE CAPITAL INTERNATIONAL HOLDINGS
CORPORATION
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON:
- ------------------- ----------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ]
(b) [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------- ----------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: BK, OO
- ------------------- ----------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: DELAWARE
- ------------------- -------- ------- -----------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 20,000,000 SHARES OF COMMON STOCK (SUBJECT TO
SHARES AGREEMENT REGARDING VOTING OF SHARES DESCRIBED
IN ITEM 4)
------- -----------------------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER:
OWNED BY
------- -----------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 20,000,000 SHARES OF COMMON STOCK
REPORTING
------- -----------------------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER:
- ------------------- ----------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: 20,000,000 SHARES OF COMMON STOCK
- ------------------- -------------------------------------------------------------------------------------------- -------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ]
- ------------------- -------------------------------------------------------------------------------------------- -------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 35.8%
- ------------------- ----------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: CO
- ------------------- ----------------------------------------------------------------------------------------------------------------
7
- ---------------------------- ---------------------------------------- -------------------------------------------------
CUSIP number 758849 10 3 13D Page 8 of 20 Pages
- ---------------------------- ---------------------------------------- -------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------- ----------------------------------------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS: GENERAL ELECTRIC CAPITAL
CORPORATION
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS:
- ------------------- ----------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ]
(b) [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------- ----------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: BK, OO
- ------------------- ----------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: DELAWARE
- ------------------- -------- ------- -----------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 20,000,000 SHARES OF COMMON STOCK (SUBJECT TO
SHARES AGREEMENT REGARDING VOTING OF SHARES DESCRIBED
IN ITEM 4)
------- -----------------------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER:
OWNED BY
------- -----------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 20,000,000 SHARES OF COMMON STOCK
REPORTING
------- -----------------------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER:
- ------------------- ----------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: 20,000,000 SHARES OF COMMON STOCK
- ------------------- ----------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 35.8%
- ------------------- ----------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: CO
- ------------------- ----------------------------------------------------------------------------------------------------------------
8
- ---------------------------- ---------------------------------------- -------------------------------------------------
CUSIP number 758849 10 3 13D Page 9 of 20 Pages
- ---------------------------- ---------------------------------------- -------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------- ----------------------------------------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS: GENERAL ELECTRIC CAPITAL SERVICES, INC.
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS:
- ------------------- ----------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ]
(b) [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------- ----------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: NOT APPLICABLE
- ------------------- ----------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: DELAWARE
- ------------------- -------- ------- -----------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 0
SHARES
------- -----------------------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: DISCLAIMED (SEE 11 BELOW)
OWNED BY
------- -----------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 0
REPORTING
------- -----------------------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: DISCLAIMED (SEE 11 BELOW)
- ------------------- ----------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: BENEFICIAL OWNERSHIP OF ALL SHARES DISCLAIMED BY
GENERAL ELECTRIC CAPITAL SERVICES, INC.
- ------------------- ----------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): NOT APPLICABLE
(SEE 11 ABOVE)
- ------------------- ----------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: CO
- ------------------- ----------------------------------------------------------------------------------------------------------------
9
- ---------------------------- ---------------------------------------- -------------------------------------------------
CUSIP number 758849 10 3 13D Page 10 of 20 Pages
- ---------------------------- ---------------------------------------- -------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------- ----------------------------------------------------------------------------------------------------------------
1 NAMES OF REPORTING PERSONS: GENERAL ELECTRIC COMPANY
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS:
- ------------------- ----------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [ ]
(b) [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- ------------------- ----------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS: NOT APPLICABLE
- ------------------- ----------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: NEW YORK
- ------------------- -------- ------- -----------------------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER: 0
SHARES
------- -----------------------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: DISCLAIMED (SEE 11 BELOW)
OWNED BY
------- -----------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 0
REPORTING
------- -----------------------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: DISCLAIMED (SEE 11 BELOW)
- ------------------- ----------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: BENEFICIAL OWNERSHIP OF ALL SHARES DISCLAIMED BY
GENERAL ELECTRIC COMPANY
- ------------------- ----------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [ ]
- ------------------- ----------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): NOT APPLICABLE
(SEE 11 ABOVE)
- ------------------- ----------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON: CO
- ------------------- ----------------------------------------------------------------------------------------------------------------
10
This Amendment No. 20 ("Amendment No. 20") is filed by Security Capital
Group Incorporated, a Maryland corporation ("Security Capital Group"), SC
Capital Incorporated, a Nevada corporation ("SC Capital") and a wholly owned
subsidiary of Security Capital Group, SC Realty Incorporated, a Nevada
corporation ("SC-Realty") and a wholly owned subsidiary of SC Capital, Security
Capital Operations Incorporated, a Maryland corporation ("Operations") and a
wholly owned subsidiary of SC-Realty, Security Capital Shopping Mall Business
Trust, a Maryland real estate investment trust and a subsidiary of Operations
(f/k/a Midwest Mixed-Use Realty Investors Trust) ("SC Shopping Mall Business
Trust" and, together with Security Capital Group, "Security Capital"), General
Electric Company, a New York corporation ("GE"), General Electric Capital
Services, Inc., a Delaware corporation ("GECS") and a wholly owned subsidiary of
GE, General Electric Capital Corporation, a Delaware corporation ("GECC") and a
wholly owned subsidiary of GECS, and GE Capital International Holdings
Corporation, a Delaware corporation ("GE Holdings" and, together with GE, GECS,
GECC, Security Capital Group, SC Capital, SC-Realty, Operations and SC Shopping
Mall Business Trust, the "Reporting Persons") and a wholly owned subsidiary of
GECC and the parent corporation of Security Capital Group.
This Amendment No. 20 amends the Schedule 13D originally filed by Security
Capital U.S. Realty and Security Capital Holdings S.A. on June 21, 1996 (as
previously amended, the "Schedule 13D"). This Amendment No. 20 relates to shares
of common stock, par value $0.01 per share ("Common Stock"), of Regency Centers
Corporation, a Florida corporation (f/k/a Regency Realty Corporation)
("Regency"). Capitalized terms used herein without definition shall have the
meanings ascribed thereto in the Schedule 13D, as amended.
Item 4. PURPOSE OF TRANSACTION
Item 4 is hereby amended and supplemented as follows:
As previously reported, Security Capital has decided to dispose of up to
34,273,236 shares of Common Stock, representing all of the shares of Common
Stock held of record by SC Shopping Mall Business Trust, through an underwritten
public offering (the "Secondary Offering"), forward sales contracts and the sale
of shares to Regency. On June 18, 2003, Security Capital agreed on the pricing
of the Secondary Offering and the forward sales contracts and entered into the
agreements and arrangements described in greater detail below. Closing of the
Secondary Offering and the previously reported sale of Common Stock to Regency
occurred on June 24, 2003.
Following the closing of the Secondary Offering, in which Security Capital
sold 9,666,356 shares of Common Stock, and the sale of 4,606,880 shares to
Regency at the public offering price of $32.56 per share, Security Capital now
owns 20,000,000 shares of Common Stock, all of which are subject to forward
sales contracts. Upon settlement of all of the forward sales contracts, which
provide for settlement at various times during the first half of 2004, or
earlier at the election of Security Capital, Security Capital will no longer own
any shares of Common Stock, unless Security Capital elects to settle one
11
or more of the forward contracts in cash rather than by delivery of shares of
Common Stock. Concurrently with the closing of the Secondary Offering and the
sale of Common Stock to Regency, the Stockholders Agreement between Security
Capital and Regency terminated in accordance with the previously reported
Agreement Relating to Disposition of Shares, dated as of June 11, 2003. Under
this agreement, Security Capital has agreed that, following the closing of the
Secondary Offering, it will vote any shares of Common Stock that are subject to
forward contracts and over which it has voting power in the same proportion as
shares are voted by other shareholders of Regency.
On June 18, 2003, Security Capital entered into an underwriting agreement
(the "Common Stock Underwriting Agreement") with the underwriters in the
Secondary Offering. Pursuant to the Common Stock Underwriting Agreement, and as
described in the prospectus relating to the Secondary Offering dated June 18,
2003, Security Capital sold 9,666,356 shares of Common Stock at $32.56 per share
(less underwriting discounts and expenses) on June 24, 2003.
In connection with the Secondary Offering, on June 18, 2003, Security
Capital also entered into forward contracts (the "Secondary Forward Contracts")
with each of Merrill Lynch International, JPMorgan Chase Bank and Wachovia Bank,
National Association (collectively, the "Secondary Forward Counterparties")
relating to an aggregate of 11,720,000 shares of Common Stock. The Secondary
Forward Contracts, which became effective on June 24, 2003, provide for
settlement on one or more settlement dates on or before June 24, 2004, to be
specified by Security Capital. At settlement, Security Capital will be entitled
to receive, in exchange for delivery of its shares of Regency Common Stock, a
cash payment equal to $31.1355 per share of Common Stock, plus interest and
minus the amount of dividends paid on the Common Stock with record dates between
June 18, 2003 and the settlement date (plus interest on those dividends). The
Secondary Forward Contracts also provide a cash settlement alternative, at
Security Capital's election. If Security Capital elects a cash settlement, then
Security Capital would retain its shares of Common Stock, and would either
receive a cash payment equal to the excess of the forward price described above
over an amount equal to the costs incurred by the Secondary Forward
Counterparties to purchase shares of Common Stock during a specified period
prior to the cash settlement payment date, if the forward price is greater than
such purchase costs, or would make a cash payment equal to the excess of such
purchase costs over the forward price, if such purchase costs are greater. The
Secondary Forward Contracts also provide for early termination and settlement
upon the occurrence of certain events.
On June 18, 2003, Security Capital Group also entered into an underwriting
agreement (the "SynDECS(SM) Underwriting Agreement") in connection with an
underwritten offering by Citigroup Global Markets Holdings Inc. of variable rate
exchangeable debt securities (the "SynDECS(SM) Offering") that are linked to
8,280,000 shares of Common Stock. In connection with the SynDECS(SM) Offering,
on June 18, 2003, Security Capital entered into master agreements for forward
sales transactions (the "SynDECS(SM) Forward Contracts") with each of Citibank,
N.A. and UBS AG, London
12
Branch (collectively, the "SynDECS(SM) Forward Counterparties"), under which the
parties, on June 24, 2003, entered into confirmations relating to forward sales
of an aggregate of 8,280,000 shares of Common Stock. The SynDECS(SM) Forward
Contracts provide for settlement on specified dates in the first half of 2004,
or another mutually acceptable date. At settlement, Security Capital will be
entitled to receive, in exchange for delivery of its shares of Regency Common
Stock, a cash payment equal to $30.92 per share of Common Stock, plus interest
and minus the amount of dividends paid on the Common Stock with record dates
between the closing of the SynDECS(SM) Offering and the settlement date (plus
interest on those dividends). The SynDECS(SM) Forward Contracts also provide a
cash settlement alternative, at Security Capital's election. If Security Capital
elects a cash settlement, then Security Capital would retain its shares of
Common Stock, and would either receive a cash payment equal to the excess of the
forward price described above over an amount equal to the costs incurred by the
SynDECS(SM) Forward Counterparties to purchase shares of Common Stock during a
specified period prior to the cash settlement payment date, if the forward price
is greater than such purchase costs, or would make a cash payment equal to the
excess of such purchase costs over the forward price, if such purchase costs are
greater. The SynDECS(SM) Forward Contracts also provide for early termination
and settlement upon the occurrence of certain events.
In connection with the Secondary Forward Contracts, Security Capital
entered into stock loan arrangements with each of the Secondary Forward
Counterparties (or an affiliate thereof), pursuant to which Security Capital has
agreed to lend to the Secondary Forward Counterparties (or affiliates thereof)
from time to time during the term of the applicable Secondary Forward Contract
some or all of the shares of Common Stock subject to the Secondary Forward
Contract. Security Capital also entered into a stock loan arrangement with
Citigroup Global Markets Inc. pursuant to which Security Capital has agreed to
lend to Citigroup Global Markets Inc. from time to time during the term of the
SynDECS(SM) Forward Contract with Citibank, N.A. up to 1,500,000 of the shares
of Common Stock subject to that forward contract.
Pursuant to both the Common Stock Underwriting Agreement and the
SynDECS(SM) Underwriting Agreement, Security Capital Group has agreed not to
offer, sell, contract to sell, pledge, or otherwise dispose of, or enter into
any transaction which is designed to, or might reasonably be expected to, result
in the disposition by Security Capital Group or any of its subsidiaries,
directly or indirectly, of any other shares of Common Stock or any securities
convertible into, or exercisable, or exchangeable for, shares of Common Stock,
or publicly announce an intention to effect any such transaction (other than the
Secondary Offering, the SynDECS(SM) Offering, the sale of stock to Regency under
the purchase agreement previously reported, and the related forward sales
transactions and related stock loan agreements), for a period of 90 days after
the date of the Common Stock Underwriting Agreement and the SynDECSSM
Underwriting Agreement.
Until delivery of the shares of Common Stock under the Secondary Forward
Contracts and the SynDECS(SM) Forward Contracts, Security Capital will continue
to
13
beneficially own and vote and receive dividends paid with respect to the
20,000,000 shares of Common Stock that are subject to those forward contracts.
As to any shares that are loaned under the stock loan arrangements described
above, Security Capital will waive the right to vote the loaned shares during
the term of any loan and will continue to receive any dividends paid thereon. As
previously reported, Security Capital has agreed that, following the closing of
the Secondary Offering, it will vote any shares of Common Stock that are subject
to forward contracts and over which it has voting power in the same proportion
as shares are voted by other shareholders of Regency. If Security Capital
decides to settle some or all of the Secondary Forward Contracts or SynDECS(SM)
Forward Contracts in cash, Security Capital will continue to beneficially own
the Common Stock subject to such forward contracts. In that event, under the
terms of the Agreement Relating to Disposition of Shares referred to above,
Security Capital has agreed that, within 100 trading days thereafter, it will
sell a sufficient number of shares so that it will no longer beneficially own
shares with a value in excess of 7% of the total value of Regency's capital
stock, which is the generally applicable ownership limit for Regency's Common
Stock.
The foregoing descriptions of the Common Stock Underwriting Agreement, the
Secondary Forward Contracts, the SynDECS(SM) Underwriting Agreement, the
SynDECS(SM) Forward Contracts, and the stock loan arrangements are qualified in
their entirety by reference to copies of the full agreements, which are included
herewith as Exhibits 35 through 46 and are specifically incorporated by
reference herein.
If Security Capital does not dispose of all of its shares pursuant to the
Secondary Forward Contracts and the SynDECS(SM) Forward Contracts, the Reporting
Persons will continue to review their investment in the Common Stock and
evaluate their plans and intentions as previously described in this Schedule 13D
(including, without limitation, Amendment No. 13 hereto). The Reporting Persons
reserve the right, based on all relevant factors, and consistent with their
contractual obligations, to change their investment intent with respect to
Regency at any time in the future, to dispose of all or a portion of their
remaining holdings of Common Stock, or to change their intention with respect to
any or all of the matters referred to in this Schedule 13D. Any action or
discussions taken in such connection will be subject to and conducted in
accordance with all applicable legal rules and contractual agreements to which
the Reporting Persons are subject or which otherwise apply to the purchase or
sale of Common Stock or the Reporting Persons' investment in Regency.
Item 5. INTEREST IN SECURITIES OF THE ISSUER
As described in Item 4 above, on June 24, 2003, Security Capital sold a
total of 14,273,236 shares of Common Stock in the transactions described in Item
4. Accordingly, the aggregate number of shares that the Reporting Persons
continue to beneficially own, with sole voting power and dispositive power, is
20,000,000, all of which are held of record by SC Shopping Mall Business Trust.
Under the Agreement Relating to Disposition of Shares referred to above,
Security Capital has agreed that,
14
following the closing of the Secondary Offering, it will vote any shares of
Common Stock that are subject to forward contracts and over which it has voting
power in the same proportion as shares are voted by other shareholders of
Regency.
Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
The descriptions of the contracts, arrangements, understandings and
relationships described above in the response to Item 4 are incorporated into
this Item.
Item 7. MATERIALS TO BE FILED AS EXHIBITS
Exhibit 34 Joint Press Release, dated June 19, 2003, issued by Security
Capital Group and Regency Centers Corporation.
Exhibit 35 Underwriting Agreement by and among Regency Centers
Corporation, Security Capital Group Incorporated, Citigroup
Global Markets Inc., Merrill Lynch International, Merrill
Lynch, Pierce, Fenner & Smith Incorporated, JPMorgan Chase
Bank and Wachovia Bank, National Association, dated June 18,
2003
Exhibit 36 Underwriting Agreement by and among Regency Centers
Corporation, Security Capital Group Incorporated, Citigroup
Global Markets Inc. and Merrill Lynch, Pierce, Fenner &
Smith Incorporated, dated June 18, 2003
Exhibit 37 Confirmation [of Forward Transaction], dated as of June 18,
2003, by and among Merrill Lynch International, Merrill
Lynch, Pierce, Fenner & Smith Incorporated, as agent and
Security Capital Shopping Mall Business Trust
Exhibit 38 Confirmation [of Forward Transaction], dated as of June 18,
2003, by and between Wachovia Securities, LLC as agent for
Wachovia Bank, National Association and Security Capital
Shopping Mall Business Trust
Exhibit 39 Confirmation [of Forward Transaction], dated as of June 18,
2003, by and among JP Morgan Chase Bank, London Branch, JP
Morgan Securities, as agent, and Security Capital Shopping
Mall Business Trust
Exhibit 40 Supplemental Securities Loan Agreement, dated as of June 18,
2003, by and between Merrill Lynch, Pierce, Fenner & Smith
15
Incorporated, Merrill Lynch International, UBS Paine Webber
Inc. and Security Capital Shopping Mall Business Trust
Exhibit 41 Supplemental Securities Loan Agreement, dated as of June 18,
2003, by and among Wachovia Bank, National Association, UBS
Paine Webber Inc. and Security Capital Shopping Mall
Business Trust
Exhibit 42 Supplemental Securities Loan Agreement, dated as of June 18,
2003, by and among JP Morgan Chase Bank, UBS Paine Webber
Inc. and Security Capital Shopping Mall Business Trust
Exhibit 43 Master Terms and Conditions for Forward Transactions, dated
as of June 18, 2003, by and between Citibank, N.A. and
Security Capital Shopping Mall Business Trust (with
Confirmation of transaction thereunder dated June 24, 2003)
Exhibit 44 Master Terms and Conditions for Forward Transactions, dated
as of June 18, 2003, by and between UBS AG, London Branch
and Security Capital Shopping Mall Business Trust (with
Confirmation of transaction thereunder dated June 24, 2003)
Exhibit 45 Supplemental Securities Loan Agreement, dated as of June 24,
2003, by and among Citigroup Global Markets Inc., UBS
Securities LLC, and Security Capital Shopping Mall Business
Trust
Exhibit 46 Securities Lending Agency Client Agreement, dated as of June
17, 2003, by and between UBS Securities LLC, and Security
Capital Shopping Mall Business Trust
16
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Schedule 13D is true, complete
and correct.
Date: June 25, 2003
GENERAL ELECTRIC COMPANY
By: /s/ KEVIN KORSH
-------------------------
Name: Kevin Korsh
Title: Attorney-in-fact
GENERAL ELECTRIC CAPITAL SERVICES, INC.
By: /s/ KEVIN KORSH
-------------------------
Name: Kevin Korsh
Title: Attorney-in-fact
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ KEVIN KORSH
-------------------------
Name: Kevin Korsh
Title: Attorney-in-fact
GE CAPITAL INTERNATIONAL HOLDINGS CORPORATION
By: /s/ KEVIN KORSH
-------------------------
Name: Kevin Korsh
Title: Attorney-in-fact
SECURITY CAPITAL GROUP INCORPORATED
By: /s/ KEVIN KORSH
-------------------------
Name: Kevin Korsh
Title: Attorney-in-fact
17
SC CAPITAL INCORPORATED
By: /s/ KEVIN KORSH
-------------------------
Name: Kevin Korsh
Title: Attorney-in-fact
SC REALTY INCORPORATED
By: /s/ KEVIN KORSH
-------------------------
Name: Kevin Korsh
Title: Attorney-in-fact
SECURITY CAPITAL OPERATIONS INCORPORATED
By: /s/ KEVIN KORSH
-------------------------
Name: Kevin Korsh
Title: Attorney-in-fact
SECURITY CAPITAL SHOPPING MALL BUSINESS TRUST
By: /s/ KEVIN KORSH
-------------------------
Name: Kevin Korsh
Title: Attorney-in-fact
18
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
Exhibit 34 Joint Press Release, dated June 19, 2003, issued by Security
Capital Group and Regency Centers Corporation.
Exhibit 35 Underwriting Agreement by and among Regency Centers
Corporation, Security Capital Group Incorporated, Citigroup
Global Markets Inc., Merrill Lynch International, Merrill
Lynch, Pierce, Fenner & Smith Incorporated, JPMorgan Chase
Bank and Wachovia Bank, National Association, dated June 18,
2003
Exhibit 36 Underwriting Agreement by and among Regency Centers
Corporation, Security Capital Group Incorporated, Citigroup
Global Markets Inc. and Merrill Lynch, Pierce, Fenner &
Smith Incorporated, dated June 18, 2003
Exhibit 37 Confirmation [of Forward Transaction], dated as of June 18,
2003, by and among Merrill Lynch International, Merrill
Lynch, Pierce, Fenner & Smith Incorporated, as agent and
Security Capital Shopping Mall Business Trust
Exhibit 38 Confirmation [of Forward Transaction], dated as of June 18,
2003, by and between Wachovia Securities, LLC as agent for
Wachovia Bank, National Association and Security Capital
Shopping Mall Business Trust
Exhibit 39 Confirmation [of Forward Transaction], dated as of June 18,
2003, by and among JP Morgan Chase Bank, London Branch, JP
Morgan Securities, as agent, and Security Capital Shopping
Mall Business Trust
Exhibit 40 Supplemental Securities Loan Agreement, dated as of June 18,
2003, by and between Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Merrill Lynch International, UBS Paine Webber
Inc. and Security Capital Shopping Mall Business Trust
Exhibit 41 Supplemental Securities Loan Agreement, dated as of June 18,
2003, by and among Wachovia Bank, National Association, UBS
Paine Webber Inc. and Security Capital Shopping Mall
Business Trust
19
Exhibit 42 Supplemental Securities Loan Agreement, dated as of June 18,
2003, by and among JP Morgan Chase Bank, UBS Paine Webber
Inc. and Security Capital Shopping Mall Business Trust
Exhibit 43 Master Terms and Conditions for Forward Transactions, dated
as of June 18, 2003, by and between Citibank, N.A. and
Security Capital Shopping Mall Business Trust (with
Confirmation of transaction thereunder dated June 24, 2003)
Exhibit 44 Master Terms and Conditions for Forward Transactions, dated
as of June 18, 2003, by and between UBS AG, London Branch
and Security Capital Shopping Mall Business Trust (with
Confirmation of transaction thereunder dated June 24, 2003)
Exhibit 45 Supplemental Securities Loan Agreement, dated as of June 24,
2003, by and among Citigroup Global Markets Inc., UBS
Securities LLC, and Security Capital Shopping Mall Business
Trust
Exhibit 46 Securities Lending Agency Client Agreement, dated as of June
17, 2003, by and between UBS Securities LLC, and Security
Capital Shopping Mall Business Trust
20
EXHIBIT 34
[Graphic Omitted] [Graphic Omitted]
SECURITY CAPITAL
Contact:
GE Real Estate
Dan Whitney
203-961-5932
Regency Centers Corp.
Lisa Palmer
904-598-7636
SECURITY CAPITAL AND REGENCY CENTERS ANNOUNCE
PRICING OF UNDERWRITTEN STOCK OFFERINGS
SANTA FE, N.M. and JACKSONVILLE, Fla., June 19, 2003 /PRNewswire-FirstCall/ --
Security Capital Group Incorporated, an indirect wholly-owned subsidiary of
General Electric Capital Corporation (NYSE: GE), and Regency Centers Corp.
(NYSE: REG) announced today that Security Capital entered into agreements to
sell up to 34.3 million shares of Regency common stock.
Security Capital has agreed to sell 18,596,832 shares of Regency common stock in
an underwritten secondary offering. The shares are being sold to the public at
$32.56 per share. The underwriters have a 30-day over-allotment option to
purchase an additional 2,789,524 shares in connection with this offering.
Security Capital has also entered into private sale agreements with certain
underwriters for 7,200,000 shares of Regency common stock in connection with the
concurrent offering by Citigroup Global Markets Holdings Inc. of SynDECS(SM)
linked to shares of Regency common stock. The underwriters have a 30-day
over-allotment option to purchase an additional 1,080,000 shares in connection
with the SynDECS(SM) offering.
In connection with these transactions, Regency will purchase 4,606,880 shares
from Security Capital at the public offering price of $32.56 per share.
If the underwriters exercise the overallotment options in full, Security Capital
will have sold or entered into private contracts to sell 34,273,236 shares,
representing all of its holdings in Regency. Upon the closing of these
transactions, the Stockholders Agreement between Security Capital and Regency
will terminate.
Citigroup Global Markets and Merrill Lynch & Co. acted as joint book runners,
and J.P. Morgan Securities Inc., UBS Securities LLC, and Wachovia Securities,
LLC acted as co-managers in the underwritten common stock offering. Citigroup
Global Markets acted as sole book runner on the SynDECS(SM) offering, with
Merrill Lynch & Co. acting as a joint lead manager.
This is not an offer to sell, or the solicitation of an offer to buy, any of
these securities.
You may obtain a written prospectus relating to the common stock offering from
Merrill Lynch Capital Markets, 4 World Financial Center, New York, NY 10080 or
Citigroup Global Markets Inc.,
Brooklyn Army Terminal, 140 58th Street, 8th Floor, Brooklyn, NY 11220. You may
obtain a written prospectus relating to the offering of SynDECS(SM) from
Citigroup Global Markets Inc. at the address above.
Regency is the leading national owner, operator, and developer focused on
grocery-anchored, neighborhood retail centers. Regency's total assets before
depreciation exceed $3 billion. As of March 31, 2003, the Company owned 261
retail properties totaling 29.6 million square feet located in high growth
markets throughout the United States. Operating as a fully integrated real
estate company, Regency is a qualified real estate investment trust that is
self-administered and self-managed.
Security Capital, an indirect wholly-owned subsidiary of General Electric
Capital Corporation, is an international real estate operating company.
This press release contains certain forward-looking statements under the federal
securities laws. These statements are based on management's current expectations
and are subject to uncertainty and changes in circumstances. Forward-looking
statements are not guarantees of future performance and involve certain risks
and uncertainties, which are difficult to predict. Actual events may differ
materially from what is expressed or forecast in this press release.
For More Information Contact:
For Security Capital:
Dan Whitney, GE Real Estate, 203-961-5932
For Regency:
Lisa Palmer, Regency Centers Corp., 904-598-7636
Exhibit 35
EXECUTION COPY
Regency Centers Corporation
18,596,832 Shares*
Common Stock
($0.01 par value)
Underwriting Agreement
New York, New York
June 18, 2003
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013, and
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
New York, New York 10080,
As Representatives of the several Underwriters,
Ladies and Gentlemen:
Security Capital Group Incorporated, a corporation organized under the laws
of the State of Maryland (the "Selling Stockholder") and, through its
subsidiary, Security Capital Shopping Mall Business Trust (the "Trust"), a
shareholder of Regency Centers Corporation, a Florida corporation (the
"Company"), which is the general partner of Regency Centers, L.P., a Delaware
limited partnership (the "Partnership"), proposes to sell through the Trust to
the several underwriters named in Schedule I hereto (the "Underwriters"), for
whom you (the "Representatives") are acting as representatives, 6,876,832 shares
of Common Stock, $0.01 par value ("Common Stock") of the Company (said shares to
be sold by the Selling Stockholder being hereinafter called the "Underwritten
Securities"). The Trust has entered into a separate forward stock purchase
agreement individually with each of Merrill Lynch International ("MLI"), with
Merrill Lynch, Pierce, Fenner & Smith Incorporated acting as agent, JPMorgan
Chase Bank ("JPMorgan"), with J.P. Morgan Securities Inc. acting as agent, and
Wachovia Bank, National Association ("Wachovia", and together with MLI and
JPMorgan, the "Forward Counterparties"), with Wachovia Securities, LLC acting as
agent, dated the date hereof
- -------------------
* Plus an option to purchase from Security Capital Group Incorporated up to
2,789,524 additional shares to cover over-allotments.
(each, a "Forward Purchase Contract"). In connection therewith, the Forward
Counterparties propose to effect sales of a number of shares of Common Stock
equal to the initial Base Amount (as defined in the Confirmation) (the "Hedge
Securities"). The Trust also has entered into related supplemental securities
loan agreements with each Forward Counterparty or an affiliate thereof (each, a
"Stock Loan Agreement") and a stock lending agency agreement with UBS Securities
LLC (the "Agency Agreement"). In addition, the Selling Stockholder proposes to
grant to the Underwriters an option to purchase up to 2,789,524 additional
shares of Common Stock to cover over-allotments (the "Option Securities"; the
Option Securities, together with the Underwritten Securities and the Hedge
Securities, being hereinafter called the "Securities"). To the extent there are
no additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the Registration Statement, a
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement, or the issue date of any Preliminary Prospectus or
the Prospectus, as the case may be, deemed to be incorporated therein by
reference. Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with, each
Underwriter and each Forward Counterparty as set forth below in this
Section 1(a).
(i) The Company meets the requirements for use of Form S-3 under
the Act and has prepared and filed with the Commission a registration
statement (file number 333-105408) on Form S-3, including a related
preliminary prospectus, for registration under the Act of the offering
and sale of the Securities. The Company may have filed one or more
amendments thereto, including a related preliminary prospectus, each
of which has previously been furnished to you. The Company will next
file with the Commission one of the following: either (1) prior to the
Effective Date of such registration statement, a further amendment to
such registration statement, (including the form of final prospectus)
or (2) after the Effective Date of such registration statement, a
final prospectus in accordance with Rules 430A and 424(b). In the case
of clause (2), the Company has included in such
2
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in such registration statement and
the Prospectus as of the Effective Date. As filed, such amendment and
form of final prospectus, or such final prospectus, shall contain all
Rule 430A Information, together with all other such required
information, and, except to the extent the Representatives shall agree
in writing to a modification, shall be in all substantive respects in
the form furnished to you prior to the Execution Time or, to the
extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made
therein (excluding Exchange Act filings incorporated therein by
reference).
(ii) On the Effective Date, the Registration Statement (and any
amendment or supplement thereto) did or will, and when the Prospectus
is first filed (if required) in accordance with Rule 424(b) and on the
Closing Date (as defined herein) and on any date on which Option
Securities are purchased, if such date is not the Closing Date (a
"settlement date"), the Prospectus (and any amendments or supplements
thereto) will, comply in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules
thereunder; on the Effective Date and at the Execution Time, the
Registration Statement (and any amendment or supplement thereto) did
not or will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and,
on the Effective Date, the Prospectus, if not filed pursuant to Rule
424(b), will not, and on the date of any filing pursuant to Rule
424(b) and on the Closing Date and any settlement date, the Prospectus
(together with any amendment or supplement thereto) will not, include
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties in this paragraph (ii) as to the information contained in
or omitted from the Registration Statement or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity
with the Selling Stockholder Information or other information
furnished in writing to the Company by or on behalf of any Underwriter
or Forward Counterparty through the Representatives specifically for
inclusion in the Registration Statement or the Prospectus (or any
amendment or supplement thereto); and no order preventing or
suspending the use of the Registration Statement has been issued by
the Commission;
(iii) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
3
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
the Selling Stockholder Information or other information furnished in
writing to the Company by the Forward Counterparty or an Underwriter
through the Representatives expressly for use in the Prospectus as
amended or supplemented;
(iv) Neither the Company nor any of its subsidiaries, including
the Partnership, has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus, as amended or supplemented; and, since the respective
dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any change in the capital stock
or partnership interests of the Company or any of its subsidiaries
(including the Partnership) (other than issuances of capital stock or
partnership interests in connection with employee benefit plans,
dividend reinvestment plans, the exercise of options, the exchange of
Partnership units and the payment of earn-outs pursuant to contractual
commitments) or in the partners' capital of the Partnership or any of
its subsidiaries, any change in mortgage loans payable or long-term
debt of the Company or any of its subsidiaries (including the
Partnership) in excess of $20,000,000 or in the mortgage loans payable
or long-term debt of the Partnership or any of its subsidiaries or any
material adverse change in excess of $20,000,000, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity,
partners' capital or results of operations of the Company and its
subsidiaries (including the Partnership), otherwise than as set forth
or contemplated in the Prospectus;
4
(v) The Company and its subsidiaries (including the Partnership)
have good and marketable title in fee simple to all real property and
good and marketable title to all personal property owned by them, in
each case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not materially
affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company and its
subsidiaries (including the Partnership); and any real property and
buildings held under lease by the Company and its subsidiaries
(including the Partnership) are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries (including
the Partnership);
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Florida, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, as
amended or supplemented, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; the
Partnership has been duly organized and is validly existing in good
standing under the laws of the State of Delaware, with power and
authority to own its properties and conduct its business as described
in the Prospectus, as amended or supplemented, and has been duly
qualified as a foreign partnership for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; and each subsidiary of the Company has been duly
incorporated or organized and is validly existing as a corporation or
other entity in good standing under the laws of its jurisdiction of
incorporation or organization;
(vii) All of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid
and non assessable; the capital stock of the Company conforms in all
material respects to the description thereof in the Prospectus, as
amended or supplemented; and, except as set forth on Exhibit A, all of
the issued shares of capital stock or other equity interests of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non assessable and (except as set forth on
Exhibit A and directors'
5
qualifying shares) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims; all of
the issued partnership interests of the Partnership have been duly and
validly authorized and issued and are fully paid and non assessable;
(viii) The Securities have been duly and validly authorized and
issued and are fully paid and non-assessable; and the Securities
conform to the description thereof contained in the Registration
Statement and the Prospectus, as amended or supplemented;
(ix) This Agreement has been duly authorized, executed and
delivered by the Company;
(x) None of the transactions contemplated by this Agreement
(excluding the Forward Purchase Contracts and the Stock Loan
Agreements) will violate or result in a violation of Section 7 of the
Exchange Act, or any regulation promulgated thereunder, including,
without limitation, Regulations T, U, and X of the Board of Governors
of the Federal Reserve System;
(xi) Prior to the date hereof, neither the Company nor any of its
affiliates (including the Partnership) has taken any action which is
designed to or which has constituted or which might have been expected
to cause or result in stabilization or manipulation of the price of
any security of the Company in connection with the offering of the
Securities;
(xii) The execution and delivery by the Company of this
Agreement, the compliance by the Company with all of the provisions
hereof and the consummation of the transactions by the Company herein
contemplated, and, to its knowledge, the sale of the Securities and
the compliance by the Company with all of the provisions of the
Securities and the consummation of the transactions by the parties
other than the Company herein contemplated, will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, (i) any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries (including the Partnership) is a
party or by which the Company or any of its subsidiaries (including
the Partnership) is bound or to which any of the property or assets of
the Company or any of its subsidiaries (including the Partnership) is
subject, (ii) the provisions of the Articles of Incorporation (other
than Sections 5.2(a), (b), (c) and (f) of the Articles of
Incorporation to the extent addressed by paragraph (xix) below) or
By-laws of the Company, the Certificate of Limited Partnership or
partnership agreement of the Partnership or (iii) any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the
6
Company or any of its subsidiaries (including the Partnership) or any
of their properties other than, in the case of clauses (i) and (iii),
such breaches or violation which, if determined adversely to the
Company, would not reasonably be expected to have a material adverse
effect on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries taken as a whole or on the consummation of the
transactions contemplated herein; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the sale of
the Securities or the consummation by the Company of the transactions
contemplated by this Agreement, except such as have been, or will have
been prior to the Closing Date (as defined in Section 3 hereof),
obtained under the Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws or the rules of the National Association
of Securities Dealers Inc. or the New York Stock Exchange, Inc. in
connection with the purchase and distribution of the Securities by the
Underwriters;
(xiii) Neither the Company nor any of its subsidiaries (including
the Partnership) is in violation of its Articles of Incorporation,
By-laws, Certificate of Limited Partnership or partnership agreement
or in default in the performance or observance of any material
obligation, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound;
(xiv) The statements set forth in the Registration Statement and
the Prospectus under the captions "Description of the Capital Stock",
"Federal Income Tax Considerations" and "Plan of Distribution" (other
than the Selling Stockholder Information and other information
furnished in writing to the Company by or on behalf of any Underwriter
or Forward Counterparty) and the statements set forth in the
Prospectus Supplement under caption "Underwriting" (other than the
Selling Stockholder Information and other information furnished in
writing to the Company by or on behalf of any Underwriter or Forward
Counterparty) are, insofar as such statements constitute a summary of
the terms of the Securities and the laws and documents referred to
therein, accurate and complete in all material respects;
(xv) Other than as set forth in the Prospectus, as amended or
supplemented, there are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries (including the
Partnership) is a party or of which any property of the Company or any
of its subsidiaries (including the Partnership) is the subject which,
if determined adversely to
7
the Company or any of its subsidiaries (including the Partnership),
would individually or in the aggregate have a material adverse effect
on the current or future financial position, stockholders' equity,
partners' capital or results of operations of the Company and its
subsidiaries (including the Partnership); and, to the best of the
Company's knowledge and the Partnership's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(xvi) The Company has qualified to be taxed as a real estate
investment trust pursuant to Sections 856 through 860 of the Code, for
each of the fiscal years from its inception through the most recently
completed fiscal year and the Company's present and contemplated
organization, ownership, method of operation, assets and income,
taking into account the consummation of the transactions contemplated
herein, are such that the Company is in a position under present law
to so qualify for the current fiscal year and in the future;
(xvii) Neither the Company nor the Partnership has knowledge of
(a) the presence of any hazardous substances, hazardous materials,
toxic substances or waste materials (collectively, "Hazardous
Materials") on any of the properties owned by it in violation of law
or in excess of regulatory action levels or (b) any unlawful spills,
releases, discharges or disposal of Hazardous Materials that have
occurred or are presently occurring on or off such properties as a
result of any construction on or operation and use of such properties,
which presence or occurrence would materially adversely affect the
condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company or the Partnership; and in
connection with the construction on or operation and use of the
properties owned by the Company and the Partnership, neither has any
knowledge of any material failure to comply with all applicable local,
state and federal environmental laws, regulations, agency
requirements, ordinances and administrative and judicial orders;
(xviii) The various actions of the Company's Board of Directors
waiving the Ownership Limit (as defined by the Company's Articles of
Incorporation) for the Selling Stockholder, the Underwriters and the
Forward Counterparties, as set forth in the resolutions adopted June
11, 2003 (together, the "Board Action"), were duly authorized, are
legal, valid and binding on the Company and remain in full force and
effect as of the date hereof;
(xix) This Agreement and the Confirmations (i) will not result in
a violation by the Underwriters or the Forward Counterparties and
their affiliates of the 7 % Ownership Limit for Common Stock that are
the
8
subject of this Agreement and the Confirmations (including, for this
purpose, Common Stock loaned to the Forward Counterparties in
connection with the Confirmations), other than Common Stock, if any,
constituting more than 9.8% by value of the Company's outstanding
capital stock (after giving effect to any Common Stock repurchased by
the Company pursuant to the purchase and sale agreement between the
Company and the Selling Stockholder with respect to $150,000,000 of
Common Stock) during the applicable term of this Agreement and the
Confirmations; provided that no Person (as defined in the Company's
Articles of Incorporation) who is an individual as defined in section
542(a)(2) of the Code (as modified by section 856(h) of the Code)
becomes the Beneficial Owner (as defined in the Company's Articles of
Incorporation) of more than 9.8% by value of the Company's capital
stock solely by reason of directly or indirectly acquiring ownership
of capital stock of the applicable Underwriter or Forward Counterparty
(disregarding any shares of the Company's capital stock other than
those owned by the applicable Underwriter or Forward Counterparty and
their subsidiaries); and provided, further, that the percentage limits
referred to herein shall be adjusted upward appropriately in the event
of any repurchases of Common Stock by the Company other than
repurchases pursuant to the purchase and sale agreement between the
Company and the Selling Stockholder referred to herein; and (ii) will
not result in a violation by the Underwriters or the Forward
Counterparties and their affiliates of the Related Tenant Limit (as
defined by the Company's Articles of Incorporation) for the number of
Common Stock that are the subject of this Agreement and the
Confirmations (including, for this purpose, Common Stock loaned to the
Forward Counterparties in connection with this Agreement and the
Confirmations), unless and except to the extent that (1) an
Underwriter or a Forward Counterparty and its affiliates directly own
or Constructively Own (as defined by the Company's Articles of
Incorporation, but without regard to this Agreement and the
Confirmations) Common Stock that constitutes more than 9.8% by value
of the Company's outstanding capital stock (after giving effect to any
Common Stock repurchased by the Company pursuant to the purchase and
sale agreement referred to herein) less the number of Common Stock
subject to this Agreement and the Confirmations entered into by such
Underwriter or Forward Counterparty and its affiliates during the
applicable term of this Agreement and the Confirmations or (2) the
Common Stock subject to this Agreement and the Confirmations entered
into by an Underwriter or a Forward Counterparty and its affiliates
during the applicable term of this Agreement and the Confirmations
exceeds 9.8% by value of the Company's outstanding capital stock
(after giving effect to any Common Stock repurchased by the Company
pursuant to the purchase and sale agreement referred to herein).;
9
(xx) Neither the Company nor the Partnership is, and after giving
effect to the offering and sale of the Securities, will be an
"investment company", or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act; and
(xxi) KPMG LLP, who have certified certain financial statements
of the Company and its subsidiaries and the Partnership and its
subsidiaries, are independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter and to each Forward
Counterparty.
(b) The Selling Stockholder represents and warrants to, and agrees
with, each Underwriter and Forward Counterparty that:
(i) The Selling Stockholder has a security entitlement (within
the meaning of Section 8-102(a)(17) of the UCC) to the Securities
maintained in a securities account on the books of UBS Financial
Services Inc. free and clear of all liens, encumbrances, equities and
claims, and, upon payment for the Underwritten Securities as provided
in this Agreement and the crediting of such shares on the books of DTC
to the securities accounts (within the meaning of Section 8-501 of the
UCC) of the various Underwriters (assuming that each of the
Underwriters lacks notice of any "adverse claim" (within the meaning
of Section 8-102 of the UCC) to the Securities), (A) each of the
Underwriters will acquire valid "security entitlements" in respect of
the Underwritten Securities purchased by such Underwriter (within the
meaning of Section 8-102 of the UCC) and (B) no action based on any
"adverse claim" (within the meaning of Section 8-102 of the UCC) to
the Underwritten Securities, whether framed in conversion, replevin,
constructive trust, equitable lien or other theory, may be asserted
against any of the Underwriters with respect to such security
entitlements;
(ii) This Agreement has been duly authorized, executed and
delivered by the Selling Stockholder; assuming due authorization,
execution and delivery by the other parties hereto, this Agreement
constitutes and, upon execution and delivery of the Confirmations, the
Confirmations will constitute, valid and legally binding agreements of
the Selling Stockholder enforceable against the Selling Stockholder in
accordance with their respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general
10
applicability relating to or affecting creditors' rights and to
general equity principles;
(iii) The Selling Stockholder has not taken, directly or
indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities;
(iv) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the
Selling Stockholder of the transactions contemplated herein have been
obtained, except (1) such as may have been obtained under the Act, (2)
such as may be required to be obtained by the Company or the
Underwriters under the rules of the National Association of Securities
Dealers, Inc. or the New York Stock Exchange, and (3) such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters and such other approvals as have been obtained; and
(v) Neither the sale of the Securities being sold by the Selling
Stockholder nor the consummation of any other of the transactions
herein contemplated by the Selling Stockholder or the fulfillment of
the terms hereof by the Selling Stockholder will conflict with, result
in a breach or violation of, or constitute a default under (i) any law
applicable to the Selling Stockholder, (ii) the charter or by-laws of
the Selling Stockholder or (iii) the terms of any indenture or other
agreement or instrument to which the Selling Stockholder or any of its
subsidiaries is a party or bound, or any judgment, order or decree
applicable to the Selling Stockholder or any of its subsidiaries of
any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Selling Stockholder or any
of its subsidiaries, other than, in the case of clauses (i) and (iii),
such breaches or violation which, if determined adversely to the
Selling Stockholder, would not reasonably be expected to have a
material adverse effect on the consummation of the transactions
contemplated herein.
(vi) In respect of any statements in or omissions from the
Registration Statement or the Prospectus or any amendments or
supplements thereto made in reliance upon and in conformity with the
Selling Stockholder Information, the Selling Stockholder hereby makes
the same representations and warranties to each Underwriter as the
Company makes to such Underwriter under paragraph (a)(ii) of this
Section (excluding any proviso); and
11
(vii) The execution and delivery of the Forward Purchase
Contracts do not, and the performance of the Forward Purchase
Contracts by the parties thereto in accordance with their respective
terms will not, violate Section 7 of the Exchange Act or Regulations
T, U or X of the Board of Governors of the Federal Reserve System; and
the execution and delivery of the Stock Loan Agreements do not, and
the performance of the Stock Loan Agreements by the parties thereto in
accordance with their respective terms and the Agency Agreement will
not, violate Section 7 of the Exchange Act or Regulations T, U or X of
the Board of Governors of the Federal Reserve System.
Any certificate signed by any officer of the Selling Stockholder and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Selling Stockholder, as to matters covered thereby, to each
Underwriter and to each Forward Counterparty.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Selling Stockholder
agrees to sell to each Underwriter, and each Underwriter agrees, severally
and not jointly, to purchase from the Selling Stockholder, at a purchase
price of $31.1355 per share, the amount of the Underwritten Securities set
forth opposite such Underwriter's name in Schedule I hereto; and (ii)
subject to the terms conditions and in reliance upon the representations
and warranties herein set forth, each Forward Counterparty, severally and
not jointly, agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from
each Forward Counterparty, at a purchase price of $31.1355 per share, that
proportion of the number of the Hedge Securities set forth opposite the
name of such Forward Counterparty in Schedule II which the number of
Underwritten Securities set forth in Schedule I hereto set forth opposite
the name of each Underwriter bears to the total number of Underwritten
Securities.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Selling Stockholder
hereby grants an option to the several Underwriters to purchase, severally
and not jointly, up to 2,789,524 Option Securities at the same purchase
price per share as the Underwriters shall pay for the Underwritten
Securities. Said option may be exercised only to cover over-allotments in
the sale of the Underwritten Securities by the Underwriters. Said option
may be exercised in whole or in part at any time on or before the 30th day
after the date of the Prospectus upon written or telegraphic notice by the
Representatives to the Selling Stockholder setting forth the number of
shares of the Option Securities as to which the several Underwriters are
exercising the option and the settlement date. The number of shares of the
Option Securities to be purchased by each Underwriter shall be the same
percentage of the total number of shares of the Option Securities to be
purchased by
12
the several Underwriters as such Underwriter is purchasing of the
Underwritten Securities, subject to such adjustments as you in your
absolute discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Securities, the Hedge Securities and the Option Securities (if the option
provided for in Section 2(b) hereof shall have been exercised on or before the
third Business Day prior to the Closing Date) shall be made at 10:00 AM, New
York City time, on June 24, 2003, or at such time on such later date not more
than three Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement between the
Representatives, the Forward Counterparties and the Selling Stockholder or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the respective aggregate purchase price thereof to or upon
the order of: (a) in the case of the Underwritten Securities, and the Option
Securities, the Selling Stockholder; and (b) in the case of the Hedge
Securities, the Forward Counterparties, in each case by wire transfer payable in
same-day funds to an account specified by the recipient. Delivery of the
Underwritten Securities, the Option Securities and the Hedge Securities shall be
made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
The Selling Stockholder will pay all applicable state transfer taxes, if
any, involved in the transfer to the several Underwriters of the Securities to
be purchased by them from the Selling Stockholder and the respective
Underwriters will pay any additional stock transfer taxes involved in further
transfers by them.
If the option provided for in Section 2(b) hereof is exercised after the
third Business Day prior to the Closing Date, the Selling Stockholder will
deliver the Option Securities (at the expense of the Selling Stockholder) to the
Representatives, at 388 Greenwich Street, New York, New York, on the date
specified by the Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Selling Stockholder by wire transfer payable in same-day funds to an account
specified by the Selling Stockholder. If settlement for the Option Securities
occurs after the Closing Date, the Company and the Selling Stockholder will
deliver to the Representatives on the settlement date for the Option Securities,
and the obligation of the Underwriters to purchase the Option Securities shall
be conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
13
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the
Prospectus.
5. Agreements.
(a) The Company agrees with the several Underwriters and the Selling
Stockholder that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereof, to become effective. Prior to the termination
of the offering of the Securities, the Company will not file any
amendment of the Registration Statement (excluding filings under the
Exchange Act incorporated by reference into the Registration
Statement) or amendment or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished you a
copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the
Prospectus is otherwise required under Rule 424(b), the Company will
cause the Prospectus, properly completed, and any amendment or
supplement thereto to be filed in a form approved by the
Representatives with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (1) when
the Registration Statement, if not effective at the Execution Time,
shall have become effective, (2) when the Prospectus, and any
amendment or supplement thereto, shall have been filed (if required)
with the Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission, (3)
when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or
become effective, (4) of any request by the Commission or its staff
for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any amendment or supplement to the
Prospectus or for any additional information, (5) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (6) of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
14
(ii) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or amend or
supplement the Prospectus to comply with the Act or the Exchange Act
or the respective rules thereunder, the Company promptly will (1)
notify the Representatives and the Selling Stockholder of such event,
(2) prepare and file with the Commission, subject to the second
sentence of paragraph (i) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect
such compliance and (3) supply any amended or supplemented Prospectus
to you in such quantities as you may reasonably request.
(iii) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(iv) The Company will furnish to the Representatives, the Selling
Stockholder and counsel for the Underwriters and the Selling
Stockholder, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Prospectus and
the Prospectus and any amendment or supplement thereto as the
Representatives may reasonably request.
(v) The Company will arrange, if necessary, for the qualification
of the Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities;
provided that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or to
take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the
Securities, in any jurisdiction where it is not now so subject.
(vi) The Company will not, and will use its good faith efforts to
cause any other holder of Common Stock not to, without the prior
written
15
consent of the Representatives, offer, sell, contract to sell, pledge,
or otherwise dispose of (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
subsidiary of the Company or any person in privity with the Company or
any subsidiary of the Company), directly or indirectly, under any
registration statement filed with the Commission or prospectus
supplement relating to an existing shelf registration filed with the
Commission (other than pursuant to registration statements in effect
on the date hereof for the benefit of selling shareholders
thereunder), any other shares of Common Stock or any securities
convertible into, or exercisable, or exchangeable for, shares of
Common Stock or publicly announce an intention to effect any such
transaction, for a period of 90 days after the date of the
Underwriting Agreement; provided, however, that the Company may issue
or sell Common Stock (i) pursuant to any employee stock option plan,
stock ownership plan or dividend reinvestment plan of the Company in
effect at the Execution Time, (ii) upon the conversion of securities
or the exercise of warrants outstanding at the Execution Time, (iii)
upon the redemption of limited partnership units of any subsidiary of
the Company outstanding at the Execution Time, (iv) in connection with
the transactions contemplated in this Underwriting Agreement,
including the forward stock purchase and stock loan agreements with
the Forward Counterparties, and (v) pursuant to an offering by
Citigroup Global Markets Holdings Inc. of debt securities exchangeable
into Common Stock and related forward purchase contracts and stock
loan agreements.
(vii) The Company will comply with all applicable securities and
other applicable laws, rules and regulations, including, without
limitation, the Sarbanes Oxley Act, and to use its reasonable best
efforts to cause the Company's directors and officers, in their
capacities as such, to comply with such laws, rules and regulations,
including, without limitation, the provisions of the Sarbanes Oxley
Act.
(viii) The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably
be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Securities.
(b) The Selling Stockholder agrees with the several Underwriters and
the Company that:
16
(i) The Selling Stockholder will not, without the prior written
consent of the Representatives, offer, sell, contract to sell, pledge,
or otherwise dispose of, or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition of (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise), directly or
indirectly, any other shares of Common Stock or any securities
convertible into, or exercisable, or exchangeable for, shares of
Common Stock by the Selling Stockholder or any subsidiary of the
Selling Stockholder or any person in privity of contract pursuant to a
contract relating to the disposition of such shares or securities or
transactions which are designed to, or might reasonably be expected
to, result in the disposition of such shares or securities with the
Selling Stockholder or any subsidiary of the Selling Stockholder,
including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish
or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange
Act; or publicly announce an intention to effect any such transaction
(other than the forward sales agreements with the Forward
Counterparties and related stock loan agreements contemplated in this
Agreement or the offering by Citigroup Global Markets Holdings Inc. of
debt securities exchangeable into Common Stock and related forward
purchase contracts and stock loan agreements), for a period of 90 days
after the date of the Underwriting Agreement.
(ii) The Selling Stockholder will not take, directly or
indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(iii) The Selling Stockholder will advise the Representatives
promptly, and if requested by you, will confirm such advice in
writing, so long as delivery of a prospectus relating to the
Securities by an underwriter or dealer may be required under the Act,
of (i) any change in information in the Registration Statement or the
Prospectus relating to the Selling Stockholder or (ii) any new
material information relating to the Company or relating to any matter
stated in the Prospectus which comes to the attention of the Selling
Stockholder.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwritten Securities, the Option Securities
and the Hedge Securities, as the case may be, shall be subject to the accuracy
of the representations and warranties on the part of the Company and the Selling
Stockholder
17
contained herein as of the Execution Time, the Closing Date and any settlement
date pursuant to Section 3 hereof, to the accuracy of the statements of the
Company and the Selling Stockholder made in any certificates pursuant to the
provisions hereof, to the performance by the Company and the Selling Stockholder
of their respective obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Prospectus, or any amendment or supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such amendment or
supplement, will be filed in the manner and within the time period required
by Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Foley & Lardner,
counsel for the Company, to have furnished to the Representatives and the
Forward Counterparties their opinion, dated the Closing Date and addressed
to the Representatives and the Forward Counterparties, to the effect that:
(i) each of the Company and its subsidiaries, including the
Partnership, has been duly incorporated and is validly existing as a
corporation or other organization in good standing under the laws of
the jurisdiction in which it is chartered or organized, with full
corporate power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as described in the
Prospectus, as amended or supplemented, and is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification and is
subject to no material liability or disability by reason of the
failure to be so qualified in any jurisdiction;
(ii) all the outstanding shares of capital stock or partnership
interests of each subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and nonassessable, and,
except as otherwise set forth on Exhibit A or in the Prospectus, as
amended or supplemented, all outstanding shares of capital stock or
partnership interests of such subsidiaries are owned by the Company
either directly or through wholly owned subsidiaries free and clear of
any perfected security
18
interest and, to the knowledge of such counsel, after due inquiry, any
other security interest, claim, lien or encumbrance;
(iii) the Company's authorized equity capitalization is as set
forth in the Prospectus; the capital stock of the Company conforms in
all material respects to the description thereof contained in the
Prospectus; the outstanding shares of Common Stock, including the
Securities, have been duly and validly authorized and issued and are
fully paid and nonassessable; the Securities are duly listed, and
admitted and authorized for trading on the New York Stock Exchange;
the certificates for the Securities are in valid and sufficient form;
other than the Selling Stockholder, the holders of outstanding shares
of capital stock of the Company are not entitled to preemptive or
other rights to subscribe for the Securities arising by operation of
law or the Company's articles of incorporation or By-laws, or, to the
knowledge of such counsel, under any agreement by which the Company is
bound; and, except as set forth in the Prospectus, as amended or
supplemented, to the knowledge of such counsel, no options, warrants
or other rights to purchase, agreements or other obligations to issue,
or rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the Company
are outstanding;
(iv) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Prospectus, and there is no
franchise, contract or other document relating to the Company or its
subsidiaries of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required; and the
statements included or incorporated by reference in the Prospectus
under the headings "Description of Capital Stock", insofar as they
purport to constitute a summary of the terms of the Securities, and
under the headings "Federal Income Tax Considerations" and "Plan of
Distribution" (other than the Selling Stockholder Information) insofar
as such statements summarize legal matters, agreements to which the
Company is a party, documents or proceedings discussed therein, are
accurate and fair summaries of such terms, legal matters, agreements,
documents or proceedings;
(v) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any amendments or
supplements thereto, pursuant to Rule 424(b) has been made in the
manner
19
and within the time period required by Rule 424(b); to the knowledge
of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened and the Registration
Statement and the Prospectus (other than the financial statements and
other financial and statistical information contained therein, as to
which such counsel need express no opinion), each as amended or
supplemented, comply as to form in all material respects with the
applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; and although counsel assumes no
responsibility for the accuracy, completeness or fairness of
statements made therein except to the extent set forth in paragraph
(iv) above, such counsel has no reason to believe that on the
Effective Date or the date the Registration Statement was last deemed
amended the Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus as of its date and on the Closing
Date included or includes any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (in each case, other than the financial
statements and other financial and statistical information contained
therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the Company is not and, after giving effect to the offering
and sale of the Securities as described in the Prospectus, will not be
an "investment company" as defined in the Investment Company Act of
1940, as amended;
(viii) no consent, approval, authorization, filing with or order
of any court or governmental agency or body is required to be obtained
by the Company in connection with the transactions contemplated
herein, except such as have been obtained under the Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated in this Agreement and in the
Prospectus and such other approvals (specified in such opinion) as
have been obtained;
(ix) the execution and delivery by the Company of this Agreement,
its compliance with all of the provisions hereof and the consummation
by the Company of any of the transactions herein contemplated, and, to
the knowledge of such counsel, the sale of the
20
Securities being sold by the Selling Stockholder and the consummation
by the parties other than the Company of any of the transactions
herein contemplated, will not conflict with, result in a breach or
violation of, or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or its subsidiaries pursuant to,
(i) the charter (other than Sections 5.2(a), (b), (c) and (f) of the
Articles of Incorporation to the extent addressed by paragraph (xiii)
below) or by-laws of the Company or its subsidiaries, (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument known to such counsel and to which the Company
or any of its subsidiaries (including the Partnership) is a party or
bound or to which its or their property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree known to
such counsel to be applicable to the Company or its subsidiaries
(including the Partnership) of any court, regulatory body,
administrative agency, governmental body or arbitrator or other
authority having jurisdiction over the Company or its subsidiaries or
any of its or their properties other than, in the case of clauses (ii)
and (iii), such breaches or violation which, if determined adversely
to the Company, would not reasonably be expected to have a material
adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries taken as a whole or on the consummation of the
transactions contemplated herein;
(x) to such counsel's knowledge no holders of securities of the
Company have rights to the registration of such securities under the
Registration Statement; and
(xi) The Company has qualified to be taxed as a real estate
investment trust pursuant to Sections 856 through 860 of the Code for
each taxable year since its inception through the most recently
completed fiscal year, and based on assumptions set forth in the
Prospectus and certain representations of the Company, including but
not limited to those set forth in an Officer's Certificate, the
Company's present and contemplated organization, ownership, method of
operation, assets and income are such that the Company is in a
position under present law to so qualify for the current fiscal year
and in the future.
(xii) The various actions of the Company's Board of Directors
waiving the Ownership Limit (as defined by the Company's Articles of
Incorporation) for the Selling Stockholder, the Underwriters and the
Forward Counterparties, as set forth in the resolutions adopted June
11, 2003 (together, the "Board Action"), were duly authorized, are
legal, valid
21
and binding on the Company and remain in full force and effect as of
the date hereof.
(xiii) This Agreement and the Confirmations (i) will not result
in a violation by the Underwriters or the Forward Counterparties and
their affiliates of the 7% Ownership Limit for Common Stock that are
the subject of this Agreement and the Confirmations (including, for
this purpose, Common Stock loaned to the Forward Counterparties in
connection with this Agreement and the Confirmations), other than
Common Stock, if any, constituting more than 9.8% by value of the
Company's outstanding capital stock (after giving effect to any Common
Stock repurchased by the Company pursuant to the purchase and sale
agreement between the Company and the Selling Stockholder with respect
to $150,000,000 of Common Stock) during the applicable term of this
Agreement and the Confirmations; provided that no Person (as defined
in the Company's Articles of Incorporation) who is an individual as
defined in section 542(a)(2) of the Code (as modified by section
856(h) of the Code) becomes the Beneficial Owner (as defined in the
Company's Articles of Incorporation) of more than 9.8% by value of the
Company's capital stock solely by reason of directly or indirectly
acquiring ownership of capital stock of the applicable Underwriter or
Forward Counterparty (disregarding any shares of the Company's capital
stock other than those owned by the applicable Underwriter or Forward
Counterparty and their subsidiaries); and provided, further, that the
percentage limits referred to herein shall be adjusted upward
appropriately in the event of any repurchases of Common Stock by the
Company other than repurchases pursuant to the purchase and sale
agreement between the Company and the Selling Stockholder referred to
herein; and (ii) will not result in a violation by the Underwriters or
the Forward Counterparties and their affiliates of the Related Tenant
Limit (as defined by the Company's Articles of Incorporation) for the
number of Common Stock that are the subject of this Agreement and the
Confirmations (including, for this purpose, Common Stock loaned to the
Forward Counterparties in connection with this Agreement and the
Confirmations), unless and except to the extent that (1) an
Underwriter or a Forward Counterparty and its affiliates directly own
or Constructively Own (as defined by the Company's Articles of
Incorporation, but without regard to this Agreement and the
Confirmations) Common Stock that constitute more than 9.8% by value of
the Company's outstanding capital stock (after giving effect to any
Common Stock repurchased by the Company pursuant to the purchase and
sale agreement referred to herein) less the number of Common Stock
subject to this Agreement and the Confirmations entered into by such
Underwriter or Forward Counterparty and its affiliates during the
applicable term of this Agreement and the Confirmations or (2) the
22
Common Stock subject to this Agreement and the Confirmations entered
into by an Underwriter or a Forward Counterparty and their affiliates
during the applicable term of this Agreement and the Confirmations
exceeds 9.8% by value of the Company's outstanding capital stock
(after giving effect to any Common Stock repurchased by the Company
pursuant to the purchase and sale agreement referred to herein);
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Florida or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of fact,
to the extent they deem proper, on certificates of responsible officers of
the Company and public officials. References to the Prospectus in this
paragraph (b) shall also include any amendments or supplements thereto at
the Closing Date.
(c) The Selling Stockholder shall have requested and caused Hogan &
Hartson L.L.P., counsel for the Selling Stockholder, to have furnished to
the Representatives and the Forward Counterparties their opinion, dated the
Closing Date and addressed to the Representatives and the Forward
Counterparties, to the effect that:
(i) upon payment for the Undewritten Securities as provided in
this Agreement and the crediting of such shares on the books of DTC to
the securities accounts (within the meaning of Section 8-501 of the
UCC) of the various Underwriters (assuming that each of the
Underwriters lacks notice of any "adverse claims" (within the meaning
of Section 8-102 of the UCC) to the Underwritten Securities, (A) the
Underwriters will acquire valid security entitlements in respect of
the Underwritten Securities (within the meaning of Section 8-102 of
the UCC) and (B) no action based on any "adverse claims" (within the
meaning of Section 8-102 of the UCC) to the Underwritten Securities,
whether framed in conversion, replevin, constructive trust, equitable
lien or other theory, may be asserted against any of the Underwriters
with respect to such security entitlements; and
(ii) the statements in the (A) second full paragraph under the
caption "Prospectus Supplement Summary-The Offering-Concurrent
Offering" and "The Offering-Concurrent Offering", (B) ninth full
paragraph under the caption "Selling Shareholder" in the Prospectus
Supplement and (C) fifth (excluding the last two sentences thereof)
and seventh full paragraphs under the caption "Underwriting", to the
extent that such statements summarize the provisions of the agreements
or
23
documents identified therein, have been reviewed by us, and are
correct in all material respects; and
(iii) the Forward Purchase Contracts and the Stock Loan
Agreements do not, and the performance of the obligations thereunder,
all in accordance with the terms of the Forward Purchase Contracts,
the Stock Loan Agreements and the Agency Agreement, will not violate
Section 7 of the Exchange Act or Regulations T, U and X of the Board
of Governors of the Federal Reserve System.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters, and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Selling Stockholder and public officials.
(d) The Selling Stockholder shall have requested and caused Jeffrey
Klopf, General Counsel of the Selling Stockholder, to have furnished to the
Representatives and the Forward Counterparties his opinion, dated the
Closing Date and addressed to the Representatives and the Forward
Counterparties, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by the Selling Stockholder and the Selling Stockholder has
full legal right and authority to sell, transfer and deliver the
Securities in the manner provided in this Agreement; and
(ii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the
Selling Stockholder of the transactions contemplated herein, except
such as may have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such opinion) as
have been obtained; and
(iii) neither the sale of the Securities being sold by the
Selling Stockholder nor the consummation of any other of the
transactions herein contemplated by the Selling Stockholder or the
fulfillment of the terms hereof by the Selling Stockholder will
conflict with, result in a breach or violation of, or constitute a
default under any law (excluding Section 7 of the Exchange Act and
Regulations T, U and X of the Board of Governors of the Federal
Reserve System) or the charter or By-laws of the Selling Stockholder
or the terms of any indenture or other agreement or instrument known
to such counsel and to which the Selling Stockholder or any of its
subsidiaries is a party or bound, or any judgment, order or decree
known to such counsel to be applicable to the Selling Stockholder or
24
any of its subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the
Selling Stockholder or any of its subsidiaries.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent he deems proper, on certificates of responsible
officers of the Selling Stockholder and public officials.
(e) The Representatives and the Forward Counterparties shall have
received from Sullivan & Cromwell LLP, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the Securities,
the Registration Statement, the Prospectus (together with any amendment or
supplement thereto) and other related matters as the Representatives may
reasonably require, and the Company and the Selling Stockholder shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives and the
Forward Counterparties a certificate of the Company, signed by the Chairman
of the Board or the President and the principal financial or accounting
officer of the Company or two other authorized signatories, dated the
Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus, any
amendments or supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus (exclusive of
any amendment or supplement thereto), there has been no material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any amendment or supplement thereto).
25
(g) The Selling Stockholder shall have furnished to the
Representatives a certificate, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Selling
Stockholder or two other authorized signatories, dated the Closing Date, to
the effect that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus, any amendment or supplement to the
Prospectus and this Agreement and that the representations and warranties
of the Selling Stockholder in this Agreement are true and correct in all
material respects on and as of the Closing Date to the same effect as if
made on the Closing Date.
(h) The Company shall have requested and caused KPMG LLP to have
furnished to the Representatives and the Selling Stockholder, at the
Execution Time and at the Closing Date, letters, dated respectively as of
the Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable rules and regulations adopted by the Commission
thereunder and that they have performed a review of the unaudited interim
financial information of the Company for the three-month period ended March
31, 2003, and as at March 31, 2003 in accordance with Statement on Auditing
Standards No. 100, and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules and, if applicable, pro forma financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus and reported on by them comply as to form
in all material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related rules and regulations
adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their
limited review, in accordance with standards established under
Statement on Auditing Standards No. 100, of the unaudited interim
financial information for the three-month period ended March 31, 2003,
and as at March 31, 2003, incorporated by reference in the
Registration Statement and the Prospectus; carrying out certain
specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily
reveal matters of significance with respect to the comments set forth
in such letter; a reading of the minutes of the meetings of the
stockholders, directors and the executive, audit and investment
committees of the Company and its subsidiaries; and inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as to
26
transactions and events subsequent to December 31, 2003, nothing came
to their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus do not comply as to form in all material respects with
applicable accounting requirements of the Act and with the
related rules and regulations adopted by the Commission with
respect to financial statements included or incorporated by
reference in quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus;
(2) with respect to the period subsequent to March 31, 2003,
there were any changes, at a specified date not more than five
days prior to the date of the letter, in the consolidated capital
stock (other than issuances of capital stock in connection with
dividend reinvestment plans, upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and
upon conversions of convertible securities, in each case which
were outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus) or any increase
in the consolidated mortgage loans payable or long-term debt of
the Company and its subsidiaries or the Partnership and its
subsidiaries, or any decreases in total assets or stockholders'
equity or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each
case as compared with the amounts shown on the March 31, 2003
consolidated balance sheet included or incorporated by reference
in the Registration Statement and the Prospectus, or for the
period from April 1, 2003 to such specified date there were any
decreases, as compared with the comparable period of the
preceding year consolidated net revenues or operating profit or
the total or per share amounts of consolidated net income or
other items specified by the Representatives, or any increases in
any items specified by the Representatives, in each case as
compared with the comparable period of the preceding year and
with any other period of corresponding length specified by the
Representatives, except in all instances for changes or decreases
set forth in such letter, in which case the letter shall be
accompanied by an explanation by
27
the Company as to the significance thereof unless said
explanation is not deemed necessary by the Representatives; or
(3) the information included or incorporated by reference in
the Registration Statement and Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information), and Item 503(d) (Ratio of
Earnings to Fixed Charges) is not in conformity with the
applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Prospectus and in Exhibit
12 to the Registration Statement, including the information set forth
under the captions "Selected Consolidated Financial Data" in the
Prospectus and the information included or incorporated by reference
in Items 1, 6 and 7 of the Company's Annual Report on Form 10-K,
incorporated by reference in the Registration Statement and the
Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q, incorporated by reference in the
Registration Statement and the Prospectus, agrees with the accounting
records of the Company and its subsidiaries, excluding any questions
of legal interpretation.
References to the Prospectus in this paragraph (g) include any
amendment or supplement thereto at the date of the letter.
(i) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any amendment or
supplement thereto), there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (g) of this
Section 6 or (ii) any change, or any development involving a prospective
change, in or affecting the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any amendment or supplement thereto) the effect of which, in
any case referred to in clause (i) or (ii) above, is, in the sole judgment
of the Representatives, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or delivery of the Securities
as contemplated by the
28
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any amendment or supplement thereto).
(j) Prior to the Closing Date, the Company and the Selling Stockholder
shall have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably request.
(k) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating.
(l) At the Execution Time, the Company shall have used good faith
effort to furnish to the Representatives a letter substantially in the form
of Exhibit B hereto from each executive officer and director of the Company
addressed to the Representatives.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement
shall not be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any
time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company and the Selling Stockholder in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Sullivan & Cromwell LLP, counsel for the
Underwriters, at 125 Broad Street, New York, New York 10004, on the Closing
Date.
7. Expenses. The Company and the Selling Stockholder covenant and agree
with each of the several Underwriters and each of the several Forward
Counterparties that, whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, (i) the Selling
Stockholder will pay or cause to be paid all registration, filing and stock
exchange or National Association of Securities Dealers fees, all fees and
expenses of complying with securities or blue sky laws, all printing expenses,
messenger and delivery expenses, any fees and disbursements of any counsel
retained by the Selling Stockholder, all underwriting discounts and commissions
and transfer taxes, if any, and any premiums and other costs of policies of
insurance obtained by the Selling Stockholder against liabilities arising out of
the public offering of the Securities and (ii) the Company will pay or cause to
be paid the fees and disbursements of counsel and independent public accountants
for the Company incurred in connection with the registration of the Securities
under the Act, including the expenses of any special audits or "cold comfort"
letters required by or incident to such registration, and any premiums and other
costs of policies of insurance obtained by the Company
29
against liabilities arising out of the sale of the Securities; provided that the
Selling Stockholder shall reimburse the Company for the first $25,000 of fees
and disbursements of counsel and independent public accountants for the Company
included in connection with the registration of the Securities; provided,
however, that the Underwriters agree to pay the Selling Stockholder up to an
amount as agreed by the Underwriters and the Selling Stockholder in
reimbursement of such expenses. It is understood, however, that, except as
provided in this Section and Section 8 hereof, the Underwriters and the Forward
Counterparties will pay all of their own costs and expenses, including the fees
of their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the Selling
Stockholder, each Underwriter and each Forward Counterparty, the directors,
officers, employees and agents of the Selling Stockholder, each Underwriter
and each Forward Counterparty and each person who controls the Selling
Stockholder or any Underwriter or Forward Counterparty within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for
the registration of the Securities as originally filed or in any amendment
thereof, or in any Preliminary Prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by the Selling Stockholder or on behalf of any Underwriter or
Forward Counterparty through the Representatives specifically for inclusion
therein; provided, further, that with respect to any untrue statement or
omission of material fact made in any Preliminary Prospectus, the indemnity
agreement contained in this Section 8(a) shall not inure to the benefit of
any Underwriter from whom the person asserting any such loss, claim, damage
or liability purchased the securities concerned, to the extent that any
such loss, claim, damage or liability of such Underwriter occurs under the
circumstance where it shall have been determined by a court of competent
jurisdiction by final and nonappealable judgment that (w) the Company had
previously furnished copies of the Prospectus to the Representatives, (x)
delivery of the Prospectus was required by the Act to be made to such
person, (y) the untrue statement or omission of a material fact contained
in the
30
Preliminary Prospectus was corrected in the Prospectus and (z) there was
not sent or given to such person, at or prior to the written confirmation
of the sale of such securities to such person, a copy of the Prospectus.
This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) The Selling Stockholder agrees to indemnify and hold harmless the
Company, each Underwriter and Forward Counterparty, the directors,
officers, employees and agents of the Company, each Underwriter and Forward
Counterparty, and each person who controls the Company or any Underwriter
or Forward Counterparty within the meaning of either the Act or the
Exchange Act to the same extent (excluding any provisos) as the foregoing
indemnity from the Company in Section 8(a), but only with reference to
written information furnished to the Company by or on behalf of the Selling
Stockholder specifically for the inclusion in the documents referred to in
the foregoing indemnity (the "Selling Stockholder Information"). The
Company, the Forward Counterparties and the Underwriters acknowledge that
the statements identified in writing to the Company constitute the only
information furnished in writing by or on behalf of the Selling Stockholder
for inclusion in any Preliminary Prospectus or the Prospectus.
(c) Each Forward Counterparty severally and not jointly agrees to
indemnify and hold harmless the Company, the Selling Stockholder, the
Underwriters, the directors, officers employees and agents of the Company,
the Selling Stockholder and each Underwriter, and each person who controls
the Company, the Selling Stockholder or any Underwriter within the meaning
of either the Act or the Exchange Act, to the same extent (excluding any
provisos) as the foregoing indemnity from the Company in Section 8(a), but
only with reference to written information relating to such Forward
Counterparty furnished to the Company by or on behalf of such Forward
Counterparty through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Forward Counterparty may
otherwise have. The Company, the Selling Stockholder and the Underwriters
acknowledge that the statements identified in writing to the Company
constitute the only information furnished in writing by or on behalf of the
several Forward Counterparties for inclusion in any Preliminary Prospectus
or the Prospectus.
(d) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, the Selling Stockholder, the Forward
Counterparties, the directors, officers employees and agents of the
Company, the Selling Stockholder and each Forward Counterparty, and each
person who controls the Company, the Selling Stockholder or any Forward
Counterparty within the meaning of either the Act or the Exchange Act, to
the same extent (excluding any provisos) as the foregoing indemnity from
the Company in Section 8(a), but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of
such Underwriter through the Representatives specifically for inclusion in
the documents referred to in the
31
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company, the
Selling Stockholder and the Forward Counterparties acknowledge that the
statements identified in writing to the Company constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in any Preliminary Prospectus or the Prospectus.
(e) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a), (b), (c) or (d)
above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a), (b), (c) or
(d) above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of one such separate counsel (regardless of the number of indemnified
parties) if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict
of interest, (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
32
(f) In the event that the indemnity provided in paragraph (a), (b),
(c), (d) or (e) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company, the Selling
Stockholder, the Underwriters and the Forward Counterparties severally
agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which the Company, the Selling Stockholder, and one or more of the
Underwriters and Forward Counterparties may be subject in such proportion
as is appropriate to reflect the relative benefits received by the Company,
the Selling Stockholder, the Underwriters and the Forward Counterparties,
respectively, from the offering of the Securities; provided, however, that
in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such Underwriter
hereunder (with, for purposes of this sentence only, each Forward
Counterparty being considered a single entity with its affiliated
Underwriter with aggregate responsibility not in excess of the underwriting
discount or commission applicable to the Securities purchased by such
affiliated Underwriter hereunder). If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company,
the Selling Stockholder, the Underwriters and the Forward Counterparties
severally shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company,
the Selling Stockholder, the Underwriters and the Forward Counterparties,
respectively, in connection with the statements or omissions which resulted
in such Losses as well as any other relevant equitable considerations.
Benefits received by the Selling Stockholder shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses)
received by the Selling Stockholder plus the total Settlement Amount
received or reasonably expected to be received by the Selling Stockholder
as of the Maturity Date (as such Terms are defined in the Confirmation),
and benefits received by the Underwriters and Forward Counterparties shall
be deemed to be equal to the total underwriting discounts and commissions,
in each case as set forth on the cover page of the Prospectus. Relative
fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
provided by the Company, the Selling Stockholder, the Underwriters or the
Forward Counterparties, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company, the Selling Stockholder, the
Forward Counterparties and the Underwriters agree that it would not be just
and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (e), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls an Underwriter, a
Forward Counterparty or the Selling Stockholder within the meaning of
33
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter, a Forward Counterparty or the Selling Stockholder
shall have the same rights to contribution as such Underwriter, Forward
Counterparty or Selling Stockholder, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and conditions of
this paragraph (e).
(g) The liability of the Selling Stockholder under the Selling
Stockholder's representations and warranties contained in Section 1(b)
hereof and under the indemnity and contribution agreements contained in
this Section 8 shall be limited to an amount equal to total net proceeds
from the offering (before deducting expenses) received by the Selling
Stockholder plus the total Settlement Amount received or reasonably
expected to be received by the Selling Stockholder as of the Maturity Date
(as such Terms are defined in the Confirmation). The Company and the
Selling Stockholder may agree, as among themselves and without limiting the
rights of the Underwriters under this Agreement, as to the respective
amounts of such liability for which they each shall be responsible.
9. Default by an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter, the
Company or the Selling Stockholder. In the event of a default by any Underwriter
as set forth in this Section 9, the Closing Date shall be postponed for such
period, not exceeding five Business Days, as the Representatives shall determine
in order that the required changes in the Registration Statement and the
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company, the Selling Stockholder and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
34
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Selling
Stockholder prior to delivery of and payment for the Securities, if at any time
prior to such time (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities, (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Prospectus (exclusive of any amendment or supplement thereto) or (iv) a
material disruption has occurred in commercial banking or securities settlement
or clearance services in the United States.
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers, the Selling Stockholder and of the Underwriters and the Forward
Counterparties set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter, any Forward Counterparty, the Selling Stockholder or the
Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to Citigroup Global Markets Inc., at 388 Greenwich Street, New
York, New York, 10013, Attention: General Counsel (fax no.: (212) 816-7912) and
Merrill Lynch, Pierce, Fenner & Smith Incorporated, 4 World Financial Center,
New York, New York 10080, Attention: Scott Eisen (fax no.: (212) 449-9143); or
if sent to the Company, will be mailed, delivered or telefaxed to the number and
address of the Company set forth in the Registration Statement; or if sent to
JPMorgan, will be mailed, delivered or telefaxed to 277 Park Avenue, 9th Floor,
New York, New York 10172, at the attention of Henry J. Wilson (fax no.: (212)
622-7358); or if sent to MLI, will be mailed, delivered or telefaxed to Merrill
Lynch International, Merrill Lynch Financial Centre, 2 King Edward Street,
London EC1A 1HQ, Attention: Manager Fixed Income Settlements (fax no.: 207 995
2004; telephone no: 207 995 3769) with a copy to Merrill Lynch & Co. Inc., 4
World Financial Center, 5th Floor, New York, New York 10080, Attention: Equity
Derivatives (fax no.: (212) 449-6576; telephone no.: (212) 449-8637); or if sent
to Wachovia, will be mailed, delivered or telefaxed to 12 East 49th Street, 45th
Floor, New York, New York 10017, Attention: Equity Link Products Documentation
(fax no.: (212) 891-5042); or if sent to the Selling Stockholder, will be
mailed, delivered or telefaxed to c/o GE Capital
35
Real Estate, 292 Long Ridge Road, Stamford, Connecticut 06927, Attention: Legal
Operation/Security Capital (fax no.: (203) 357-6768) and confirmed to it at
Hogan & Hartson L.L.P., 555 13th Street NW, Washington, DC 20004-1109,
Attention: J. Warren Gorrell, Jr. (fax no.: (202) 637-5910).
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors, employees, agents and controlling persons referred to in Section 8
hereof, and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only and
shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement, shall
have the meanings indicated.
"7% Ownership Limit" means the Ownership Limit, as such term is
defined in the Company's Articles of Incorporation.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commission" shall mean the Securities and Exchange Commission.
"DTC" shall mean the Depository Trust Company.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
36
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Investment Company Act" shall mean the United States Investment
Company Act of 1940, as amended.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in Section 1(a) above and any preliminary prospectus included
in the Registration Statement at the Effective Date that omits Rule 430A
Information, in each case including the documents incorporated by reference
therein pursuant to the applicable form under the Act, as of the date of
such preliminary prospectus
"Prospectus" shall mean the prospectus relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities included in the Registration
Statement at the Effective Date, in each case including the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the registration statement referred to in Section 1(a)
hereof.
37
"UCC" shall mean the Uniform Commercial Code as currently in effect in
the State of New York.
38
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the
Company, the Selling Stockholder, the Forward Counterparties and the several
Underwriters.
Very truly yours,
Regency Centers Corporation
By: /s/ Martin E. Stein, Jr.
-----------------------------------------
Name: Martin E. Stein, Jr.
Title: Chairman
Security Capital Group Incorporated
By: /s/ Philip A. Mintz
-----------------------------------------
Name: Philip A. Mintz
Title: Vice President
Merrill Lynch International,
by its agent, Merrill Lynch, Pierce, Fenner
& Smith Incorporated
By: /s/ Douglas R. Robinson
-----------------------------------------
Name: Douglas R. Robinson
Title: Managing Director
JPMorgan Chase Bank,
by its agent, J.P. Morgan Securities Inc.
By: /s/ Stephen E. Gray
-----------------------------------------
Name: Stephen E. Gray
Title: Managing Director
Wachovia Bank, National Association
By: /s/ Mary Louise Guttmann
-----------------------------------------
Name: Mary Louise Guttman
Title: Senior Vice President
39
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
By: /s/ Jeff Horowitz
-----------------------------------------
Name: Jeff Horowitz
Title: Managing Director
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By: /s/ Mark E. Hagan
-----------------------------------------
Name: Mark E. Hagan
Title: Vice President
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
40
SCHEDULE I
Number of
Underwritten Number of Hedge
Securities to Securities to
Underwriters be Purchased be Purchased
- ------------ ------------- ---------------
Citigroup Global Markets Inc.............. 5,236,449
Merrill Lynch, Pierce, Fenner &
Smith Incorporated....................... 5,236,449 3,906,667
UBS Securities LLC........................ 3,490,966
J.P. Morgan Securities Inc................ 1,745,484 3,906,667
Wachovia Securities, LLC.................. 1,745,484 3,906,666
Lazard Capital Markets.................... 285,500
Legg Mason Wood Walker, Incorporated...... 285,500
U.S. Bancorp Piper Jaffray Inc............ 285,500
Raymond James & Associates, Inc........... 285,500
Total............................ 18,596,832 11,720,000
SCHEDULE II
Number of
Hedge Securities
Forward Counterparty to be Sold
- -------------------- ----------------
Merrill Lynch International............................. 3,906,667
Wachovia Bank, National Association..................... 3,906,666
JPMorgan Chase Bank..................................... 3,906,667
EXHIBIT B
[Letterhead of executive officer or director of
Corporation]
Regency Centers Corporation
Public Offering of Common Stock
June __, 2003
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
New York, New York 10080
As Representatives of the several Underwriters,
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), among Security Capital
Group Incorporated, a Maryland corporation (the "Selling Stockholder"), Regency
Centers Corporation, a Florida corporation (the "Company"), JPMorgan Chase Bank,
Merrill Lynch International, Wachovia Bank, National Association and each of you
as representatives of a group of Underwriters named therein, relating to an
underwritten public offering of Common Stock, $0.01 par value (the "Common
Stock"), of the Company, and the proposed Underwriting Agreement (the "SynDECS
Underwriting Agreement"), among Citigroup Global Markets Holdings Inc., a New
York corporation ("Holdings"), the Company, the Selling Stockholder, and each of
you as representatives of a group of Underwriters named therein, relating to an
underwritten public offering of SynDECS (Debt Exchangeable for Common Stock)
consisting of the Holdings' Variable Rate Exchange Notes Due June , 2006.
In order to induce you (the "Representatives") and the other Underwriters
to enter into the Underwriting Agreement and SynDECS Underwriting Agreement, as
applicable, the undersigned will not, without the prior written consent of the
Representatives, offer, sell, contract to sell, pledge or otherwise dispose of
(or enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
undersigned or any affiliate of the undersigned or any person in privity with
the undersigned or any affiliate of the undersigned), directly or indirectly,
including the filing (or participation in the filing) of a registration
statement with the Securities and Exchange Commission in respect of, or
establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Securities and Exchange Commission
promulgated thereunder with respect to, any shares of Common Stock or any
securities convertible into Common Stock, or publicly announce an intention to
effect any such transaction, for a period of 90 days after the later of the
dates of the Underwriting Agreement and SynDECS Underwriting Agreement, other
than shares of Common Stock disposed of (i) in connection with the transactions
contemplated in the Underwriting Agreement and the SynDECS Underwriting
Agreement (including the related forward purchase contracts and stock loan
agreements) or (ii) as bona fide gifts, so long as the donee of such gift agrees
in writing to be bound by the restrictions set forth herein and notice of such
gift is given to the Representatives.
If for any reason both the Underwriting Agreement and SynDECS Underwriting
Agreement shall be terminated prior to the Closing Date (as defined in the
Underwriting Agreement), the agreement set forth above shall likewise be
terminated.
Yours very truly,
[Signature of executive officer or director]
[Name and address of executive officer
or director]
2
Exhibit 36
EXECUTION COPY
CITIGROUP GLOBAL MARKETS HOLDINGS INC.
7,200,000 SYNDECSSM (Debt Exchangeable for Common StockSM)*
Variable Rate Exchangeable Notes Due July 1, 2006
(Subject to Exchange into Shares of Common
Stock, par value $.01 per share, of Regency Centers Corporation)
Underwriting Agreement
New York, New York
June 18, 2003
CITIGROUP GLOBAL MARKETS INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED As Representatives of the
several Underwriters, c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Citigroup Global Markets Holdings Inc., a New York corporation
("Holdings"), proposes to issue and to sell to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom you (the "Representatives") are
acting as representatives, an aggregate of 7,200,000 SynDECS (Debt Exchangeable
for Common Stock) consisting of $234,432,000 aggregate principal amount of its
Variable Rate Exchangeable Notes Due July 1, 2006 (the "Underwritten SynDECS"),
to be issued under an indenture (the "Indenture") dated as of October 27, 1993
between Holdings and The Bank of New York, as trustee (the "Trustee"), as
amended to the date hereof. In addition, the Underwriters will have an option to
purchase up to 1,080,000 SynDECS (with an aggregate principal amount of up to
$35,164,800) (the "Option SynDECS" and, together with the Underwritten SynDECS,
the "SynDECS") to cover over-allotments, if any. At maturity (including as a
result of acceleration or otherwise), the SynDECS will be mandatorily exchanged
by Holdings into shares of Common Stock, par value $.01 per share (the "Regency
Common Stock"), of Regency Centers Corporation, a Florida corporation (the
"Company"), at the rate specified in the Holding Prospectus Supplement (as
defined below), or the cash equivalent of those shares, or a combination of cash
and shares. The Company is a general partner of Regency Centers, L.P., a
Delaware limited partnership (the "Partnership").
- ------------------
* Plus an option to purchase from Holdings up to 1,080,000 additional SynDECS
to cover over-allotments.
Security Capital Group Incorporated, a Maryland corporation (the "Selling
Stockholder"), through its subsidiary Security Capital Shopping Mall Business
Trust (the "Trust"), has entered into a Master Terms and Conditions for Forward
Transactions individually with each of Citibank, N.A., an affiliate of Holdings,
and UBS AG, London Branch (each, a "Forward Counterparty"), each dated as of
even date herewith (each, a "Forward Agreement"), and will enter into a
Confirmation pursuant to each such Forward Agreement substantially in the form
of Exhibit A to such Forward Agreement (each, a "Confirm"), pursuant to which
the Trust will agree to sell, and the Forward Counterparties will agree to
purchase, the number of shares (the "Regency Shares") of Regency Common Stock
specified therein on the dates specified therein (the "Exchange Dates") in
accordance with the terms thereof. The Forward Agreements (together with the
related Confirms) may be settled in cash at the option of the Trust on the terms
set forth therein. In addition, UBS AG, London Branch has entered into a Master
Terms and Conditions for Forward Transactions with Citibank, N.A., dated as of
even date herewith (the "UBS Agreement"), and will enter into a Confirmation
pursuant to such UBS Agreement (the "UBS Confirm"), which will be settled either
in cash (for the value of the shares that UBS AG, London Branch is entitled to
receive from the Trust) or by delivery of such shares subject to certain
conditions on the dates specified therein in accordance with the terms thereof.
The Forward Agreements, the Confirms and the UBS Agreement are together referred
to herein as the "Forward Arrangements". The Selling Stockholder, through the
Trust, has also entered into forward purchase agreements individually (the
"Concurrent Forward Agreements") with each of Merrill Lynch International, with
Merrill Lynch, Pierce, Fenner & Smith Incorporated acting as agent, JPMorgan
Chase Bank, with J.P. Morgan Securities Inc. acting as agent, and Wachovia Bank,
National Association, with Wachovia Securities, LLC acting as agent
(collectively, the "Concurrent Forward Counterparties"), dated as of even date
herewith, pursuant to which the Trust has agreed to sell, and the Concurrent
Forward Counterparties have agreed to purchase, the number of shares (the
"Concurrent Regency Shares") of Regency Common Stock specified therein on the
dates specified therein (the "Concurrent Exchange Dates") in accordance with the
terms thereof. The Selling Stockholder also has entered into related stock
lending arrangements with the Concurrent Forward Counterparties or affiliates
thereof (the "Concurrent Stock Loan Agreement" and, together with the Concurrent
Forward Agreements, the "Concurrent Forward Arrangements").
General Electric Capital Corporation, an affiliate of the Selling
Stockholder ("GECC"), has agreed to guarantee the obligations of the Selling
Stockholder and the Trust under this Agreement (the "GE UA Guarantee") and the
Forward Agreements (together with the GE UA Guarantee, the "GE Guarantees"),
respectively.
The Company has filed with the Commission a shelf registration statement,
including a prospectus, for a total 34,273,236 shares of Regency Common Stock,
pursuant to which the Trust and its transferees may offer and sell the Regency
Shares.
Any reference herein to the Holdings Registration Statement, the Holdings
Prospectus, any Holdings Preliminary Prospectus Supplement, the Holdings
Prospectus Supplement, the Company Registration Statement, the Company
Prospectus, any Company Preliminary Prospectus Supplement or the Company
Prospectus Supplement (each, as defined below) shall be deemed to refer to and
include the documents incorporated by reference therein
2
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Holdings Registration Statement or Company
Registration Statement, as the case may be, or the issue date of the Holdings
Prospectus, any Holdings Preliminary Prospectus Supplement, the Holdings
Prospectus Supplement, the Company Prospectus, any Company Preliminary
Prospectus Supplement or the Company Prospectus Supplement, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Holdings Registration Statement, the Holdings Prospectus, any
Holdings Preliminary Prospectus Supplement, the Holdings Prospectus Supplement,
the Company Registration Statement, the Company Prospectus, any Company
Preliminary Prospectus Supplement or the Company Prospectus Supplement shall be
deemed to refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Holdings Registration Statement or Company
Registration Statement, as the case may be, or the issue date of the Holdings
Prospectus, any Holdings Preliminary Prospectus Supplement, the Holdings
Prospectus Supplement, the Company Prospectus, any Company Preliminary
Prospectus Supplement or the Company Prospectus Supplement, as the case may be,
deemed to be incorporated therein by reference.
To the extent there are no additional Underwriters listed on Schedule I
other than you, the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall mean either
the singular or plural as the context requires. The use of the neuter in this
Agreement shall include the feminine and masculine wherever appropriate. Certain
terms used herein are defined in Section 22 hereof.
1. Representations and Warranties of Holdings. Holdings represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) A registration statement on Form S-3 (File No. 333-55650),
including a related prospectus, relating to the SynDECS has been prepared
by Holdings in conformity in all material respects with the requirements of
the Act and the Trust Indenture Act, and the Rules and Regulations of the
Commission thereunder, and has been filed with the Commission and has
become effective. Such registration statement and prospectus may have been
amended or supplemented from time to time prior to the date of this
Agreement; any such amendment to the Registration Statement was so prepared
and filed and any such amendment has become effective. A preliminary
prospectus supplement (the "Holdings Preliminary Prospectus Supplement")
and a final prospectus supplement (the "Holdings Prospectus Supplement"),
including a prospectus, relating to the SynDECS has been or will be so
prepared and has been or will be filed pursuant to Rule 424 under the Act.
Copies of such registration statement and prospectus, any Holdings
Preliminary Prospectus Supplement and the Holdings Prospectus Supplement,
including in each case any amendment or supplement, and all documents
incorporated by reference therein which were filed with the Commission on
or prior to the date hereof have been delivered to you.
(b) The Holdings Registration Statement, at the time it became
effective, any post-effective amendment thereto, at the time it became
effective, the Holdings Registration Statement and the Holdings Prospectus,
as of the date hereof and at the Closing Date (as defined in Section 3
hereof), and any amendment or supplement thereto,
3
conformed or will conform in all material respects to the requirements of
the Act, the Trust Indenture Act and the Rules and Regulations; and no such
document included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; except that the
foregoing shall not apply to (i) statements in or omissions from any such
document in reliance upon, and in conformity with, written information
furnished to Holdings by or on behalf of any Underwriter through you,
specifically for use in the preparation thereof or (ii) that part of the
Registration Statement which shall constitute the Statement of Eligibility
(Form T-1) under the Trust Indenture Act of the Trustee.
(c) The documents incorporated by reference in the Holdings
Registration Statement or the Holdings Prospectus, when they became
effective or were filed with the Commission, as the case may be, under the
Exchange Act, conformed, and any documents so filed and incorporated by
reference after the date hereof will, when they are filed with the
Commission, conform, in all material respects to the requirements of the
Act and the Exchange Act, as applicable, and the Rules and Regulations
thereunder.
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with each Underwriter as set forth below in this
Section 2.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement
(file number 333-105408) on Form S-3, including a related preliminary
prospectus, for registration under the Act of the offering and sale of the
Regency Common Stock. The Company may have filed one or more amendments
thereto, including a related preliminary prospectus, each of which has
previously been furnished to you. The Company will next file with the
Commission one of the following: either (1) prior to the Effective Date of
such registration statement, a further amendment to such registration
statement (including the form of final prospectus) or (2) after the
Effective Date of such registration statement, a final prospectus in
accordance with Rules 430A and 424(b). In the case of clause (2), the
Company has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information) required
by the Act and the rules thereunder to be included in such registration
statement and the Company Prospectus as of the Effective Date. As filed,
such amendment and form of final prospectus, or such final prospectus,
shall contain all Rule 430A Information, together with all other such
required information, and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all substantive respects in
the form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Company Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein (excluding
Exchange Act filings incorporated therein by reference).
(b) On the Effective Date, the Company Registration Statement (and any
amendment or supplement thereto) did or will, and when the Company
Prospectus is first
4
filed (if required) in accordance with Rule 424(b) and on the Closing Date
(as defined herein), the Company Prospectus (and any amendments or
supplements thereto) will, comply in all material respects with the
applicable requirements of the Act and the Exchange Act and the respective
rules thereunder; on the Effective Date and at the Execution Time, the
Company Registration Statement (and any amendment or supplement thereto)
did not or will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, on the Effective
Date, the Company Prospectus, if not filed pursuant to Rule 424(b), will
not, and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Company Prospectus (together with any amendment or
supplement thereto) will not, include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties in this paragraph (b) as to the information
contained in or omitted from the Company Registration Statement or the
Company Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with the Selling Stockholder Information (as defined
herein) or other information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion in the Company Registration Statement or the Company Prospectus
(or any amendment or supplement thereto); and no order preventing or
suspending the use of the Company Registration Statement has been issued by
the Commission;
(c) The documents incorporated by reference in the Company Prospectus,
when they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the Rules and Regulations
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Company
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the Rules and Regulations
thereunder and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with the Selling Stockholder
Information or other information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use in the Company
Prospectus as amended or supplemented;
(d) Neither the Company nor any of its subsidiaries, including the
Partnership, has sustained since the date of the latest audited financial
statements included or incorporated by reference in the Company Prospectus
any material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
5
otherwise than as set forth or contemplated in the Company Prospectus, as
amended or supplemented; and, since the respective dates as of which
information is given in the Company Registration Statement and the Company
Prospectus, there has not been any change in the capital stock or
partnership interests of the Company or any of its subsidiaries (including
the Partnership) (other than issuances of capital stock or partnership
interests in connection with employee benefit plans, dividend reinvestment
plans, the exercise of options, the exchange of Partnership units and the
payment of earn-outs pursuant to contractual commitments) or in the
partners' capital of the Partnership or any of its subsidiaries, any change
in mortgage loans payable or long-term debt of the Company or any of its
subsidiaries (including the Partnership) in excess of $20,000,000 or in the
mortgage loans payable or long-term debt of the Partnership or any of its
subsidiaries or any material adverse change in excess of $20,000,000, or
any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity, partners' capital or results of operations of the
Company and its subsidiaries (including the Partnership), otherwise than as
set forth or contemplated in the Company Prospectus;
(e) The Company and its subsidiaries (including the Partnership) have
good and marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case free
and clear of all liens, encumbrances and defects except such as are
described in the Company Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries (including
the Partnership); and any real property and buildings held under lease by
the Company and its subsidiaries (including the Partnership) are held by
them under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its subsidiaries
(including the Partnership);
(f) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Florida, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Company Prospectus, as amended or
supplemented, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no material
liability or disability by reason of the failure to be so qualified in any
such jurisdiction; the Partnership has been duly organized and is validly
existing in good standing under the laws of the State of Delaware, with
power and authority to own its properties and conduct its business as
described in the Company Prospectus, as amended or supplemented, and has
been duly qualified as a foreign partnership for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; and each subsidiary of the Company has been duly incorporated
or organized
6
and is validly existing as a corporation or other entity in good standing
under the laws of its jurisdiction of incorporation or organization;
(g) All of the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and non
assessable; the capital stock of the Company conforms in all material
respects to the description thereof in the Company Prospectus as amended or
supplemented; and, except as set forth on Exhibit A, all of the issued
shares of capital stock or other equity interests of each subsidiary of the
Company have been duly and validly authorized and issued, are fully paid
and non assessable and (except as set forth on Exhibit A and directors'
qualifying shares) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims; all of the issued
partnership interests of the Partnership have been duly and validly
authorized and issued and are fully paid and non assessable;
(h) The Regency Shares have been duly and validly authorized and
issued and are fully paid and non-assessable; and the Regency Shares
conform to the description thereof contained in the Company Registration
Statement and the Company Prospectus as amended or supplemented;
(i) This Agreement has been duly authorized, executed and delivered by
the Company;
(j) None of the transactions contemplated by this Agreement (excluding
the Forward Arrangements, any Regency Shares loaned to the Forward
Counterparties in connection with the Forward Arrangements, and the GE
Guarantees) will violate or result in a violation of Section 7 of the
Exchange Act, or any regulation promulgated thereunder, including, without
limitation, Regulations T, U, and X of the Board of Governors of the
Federal Reserve System;
(k) Prior to the date hereof, neither the Company nor any of its
affiliates (including the Partnership) has taken any action which is
designed to or which has constituted or which might have been expected to
cause or result in stabilization or manipulation of the price of any
security of the Company in connection with the offering of the Regency
Common Stock or the SynDECS;
(l) The execution and delivery by the Company of this Agreement, its
compliance with all of the provisions hereof and the consummation of the
transactions by the Company contemplated herein and, to its knowledge, the
consummation of the transactions by the parties other than the Company
contemplated herein (including the Forward Arrangements) will not conflict
with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, (i) any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company
or any of its subsidiaries (including the Partnership) is a party or by
which the Company or any of its subsidiaries (including the Partnership) is
bound or to which any of the property or assets of the Company or any of
its subsidiaries (including the Partnership) is subject; (ii) the
provisions of the Articles of Incorporation (other than Sections 5.2(a),
(b), (c) and (f)
7
of the Articles of Incorporation to the extent addressed by paragraphs (u)
and (v) below) or By-laws of the Company, the Certificate of Limited
Partnership or partnership agreement of the Partnership or (iii) any
statute or any order, rule or regulation of any court or governmental
agency or body known to have jurisdiction over the Company or any of its
subsidiaries (including the Partnership) or any of their properties other
than, in the case of clauses (i) and (iii), such breaches or violations
which, if determined adversely to the Company, would not reasonably be
expected to have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole or on the
consummation of the transactions contemplated herein; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this
Agreement, except (1) such as have been, or will have been prior to the
Closing Date, obtained under the Act, (2) such as may be required to be
obtained by the Company, Holdings or the Underwriters under the rules of
the National Association of Securities Dealers, Inc. or the New York Stock
Exchange, and (3) such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and sale of the SynDECS by the
Underwriters or the delivery of the Regency Shares pursuant to the terms of
the Forward Arrangements and the SynDECS;
(m) Neither the Company nor any of its subsidiaries (including the
Partnership) is in violation of its Articles of Incorporation, By-laws,
Certificate of Limited Partnership or partnership agreement or in default
in the performance or observance of any material obligation, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or
by which it or any of its properties may be bound;
(n) The statements set forth in the Company Registration Statement and
the Company Prospectus as amended or supplemented under the captions
"Description of the Capital Stock", "Federal Income Tax Considerations" and
"Plan of Distribution" (other than the Selling Stockholder Information) and
the statements set forth in the Company Prospectus Supplement under the
caption "Underwriting" (other than the Selling Stockholder Information and
other information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives) are, insofar as such
statements constitute a summary of the terms of the Regency Common Stock
and the laws and documents referred to therein, accurate and complete in
all material respects;
(o) Other than as set forth in the Company Prospectus, as amended or
supplemented, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries (including the Partnership) is
a party or of which any property of the Company or any of its subsidiaries
(including the Partnership) is the subject which, if determined adversely
to the Company or any of its subsidiaries (including the Partnership),
would individually or in the aggregate have a material adverse effect on
the current or future financial position, stockholders' equity, partners'
capital or results of operations of the Company and its subsidiaries
(including the
8
Partnership); and, to the best of the Company's knowledge and the
Partnership's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(p) The Company has qualified to be taxed as a real estate investment
trust pursuant to Sections 856 through 860 of the Code, for each of the
fiscal years from its inception through the most recently completed fiscal
year and the Company's present and contemplated organization, ownership,
method of operation, assets and income, taking into account the SynDECS,
the Forward Arrangements, the Regency Shares loaned to the Forward
Counterparties in connection with the Forward Arrangements and the
Concurrent Forward Arrangements, are such that the Company is in a position
under present law to so qualify for the current fiscal year and in the
future;
(q) Neither the Company nor the Partnership has knowledge of (a) the
presence of any hazardous substances, hazardous materials, toxic substances
or waste materials (collectively, "Hazardous Materials") on any of the
properties owned by it in violation of law or in excess of regulatory
action levels or (b) any unlawful spills, releases, discharges or disposal
of Hazardous Materials that have occurred or are presently occurring on or
off such properties as a result of any construction on or operation and use
of such properties, which presence or occurrence would materially adversely
affect the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company or the Partnership; and in
connection with the construction on or operation and use of the properties
owned by the Company and the Partnership, neither has any knowledge of any
material failure to comply with all applicable local, state and federal
environmental laws, regulations, agency requirements, ordinances and
administrative and judicial orders;
(r) Neither the Company nor the Partnership is, and after giving
effect to the issuance of the SynDECS and the delivery of the Regency
Shares pursuant to the terms of the Forward Arrangements and the SynDECS,
will be an "investment company", or an entity "controlled" by an
"investment company", as such terms are defined in the Investment Company
Act; and
(s) KPMG LLP, who have certified certain financial statements of the
Company and its subsidiaries and the Partnership and its subsidiaries, are
independent public accountants as required by the Act and the Rules and
Regulations thereunder.
(t) The various actions of the Company's Board of Directors waiving
the Ownership Limit (as defined by the Company's Articles of Incorporation)
for the Selling Stockholder and the Forward Arrangements, as set forth in
the resolutions adopted June 11, 2003 (together, the "Board Action"), were
duly authorized, are legal, valid and binding on the Company and remain in
full force and effect as of the date hereof;
(u) The Forward Agreements and the Confirms (i) will not result in a
violation by the Forward Counterparties and their affiliates of the 7%
Ownership Limit for the number of Regency Shares that are the subject of
the Forward Agreements and the Confirms (including, for this purpose,
Regency Shares loaned to the Forward Counterparties in
9
connection with the Forward Agreements and the Confirms), other than
Regency Shares, if any, constituting more than 9.8% by value of the
Company's outstanding capital stock (after giving effect to any Regency
Common Stock repurchased by the Company pursuant to the purchase and sale
agreement between the Company and the Selling Stockholder with respect to
$150,000,000 of Regency Common Stock) during the applicable term of the
Forward Agreements and the Confirms and, if applicable, during the term of
the SynDECS and for a period of 90 days thereafter; provided that no Person
(as defined in the Company's Articles of Incorporation) who is an
individual as defined in section 542(a)(2) of the Code (as modified by
section 856(h) of the Code) becomes the Beneficial Owner (as defined in the
Company's Articles of Incorporation) of more than 9.8% by value of the
Company's capital stock solely by reason of directly or indirectly
acquiring ownership of capital stock of the applicable Forward Counterparty
(disregarding any shares of the Company's capital stock other than those
owned by the applicable Forward Counterparty and its subsidiaries); and
provided, further, that the percentage limits referred to herein shall be
adjusted upward appropriately in the event of any repurchases of Regency
Common Stock by the Company other than repurchases pursuant to the purchase
and sale agreement between the Company and the Selling Stockholder referred
to herein; and (ii) will not result in a violation by the Forward
Counterparties and their affiliates of the Related Tenant Limit (as defined
by the Company's Articles of Incorporation) for the number of Regency
Shares that are the subject of the Forward Agreements and the Confirms
(including, for this purpose, Regency Shares loaned to the Forward
Counterparties in connection with the Forward Agreements and the Confirms),
unless and except to the extent that (1) a Forward Counterparty and its
affiliates directly own or Constructively Own (as defined by the Company's
Articles of Incorporation, but without regard to the Forward Agreements,
the Confirms, the UBS Agreement and the UBS Confirm) Regency Shares that
constitute more than 9.8% by value of the Company's outstanding capital
stock (after giving effect to any Regency Common Stock repurchased by the
Company pursuant to the purchase and sale agreement referred to herein)
less the number of Regency Shares subject to the Forward Agreements and the
Confirms entered into by such Forward Counterparty and its affiliates
during the applicable term of the Forward Agreements and the Confirms and,
if applicable, during the term of the SynDECS and for a period of 90 days
thereafter, or (2) the Regency Shares subject to the Forward Agreements and
the Confirms entered into by a Forward Counterparty and its affiliates
during the applicable term of the Forward Agreements and the Confirms and,
if applicable, during the term of the SynDECS and for a period of 90 days
thereafter exceeds 9.8% by value of the Company's outstanding capital stock
(after giving effect to any Regency Common Stock repurchased by the Company
pursuant to the purchase and sale agreement referred to herein).
(v) The UBS Agreement will not cause Holdings and its affiliates to be
considered as owning shares of Regency Common Stock in excess of the
Related Tenant Limit (as defined in the Company's Articles of
Incorporation) for purposes of the limitations set forth in Sections 5.2(b)
and 5.2(f) of the Company's Articles of Incorporation or to own the shares
of Regency Common Stock covered by the UBS Agreement for purposes of the 7%
Ownership Limit.
10
(w) Holdings and its affiliates will not be considered as owning
shares of Regency Common Stock that Holdings has delivered to holders of
the SynDECS (other than Holdings and its affiliates) or to the Trustee on
such holders' behalf for purposes of the 7% Ownership Limit or the Related
Tenant Limit (as defined by the Company's Articles of Incorporation).
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the SynDECS shall be deemed a representation and warranty by the Company as
to matters covered thereby, to each Underwriter.
3. Representations and Warranties of the Selling Stockholder. The Selling
Stockholder represents and warrants to, and agrees with, each Underwriter that:
(a) The Selling Stockholder, through the Trust, has a security
entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to the
Regency Shares to be delivered by it under the Forward Agreements and the
Confirms maintained in a securities account on the books of UBS Financial
Services Inc. free and clear of all liens, encumbrances, equities and
claims, and upon payment for the Regency Shares as provided in the
applicable Forward Agreement and Confirm, and the crediting of such Regency
Shares on the books of The Depository Trust Company to the securities
accounts (within the meaning of Section 8-501 of the UCC) of the various
Forward Counterparties (assuming that each of the Forward Counterparties
lacks notice of any "adverse claim" (within the meaning of Section 8-102 of
the UCC) to the Regency Shares), (A) each of the Forward Counterparties
will acquire valid "security entitlements" in respect of the Regency Shares
purchased by such Forward Counterparty (within the meaning of Section 8-102
of the UCC) and (B) no action based on any "adverse claim" (within the
meaning of Section 8-102 of the UCC) to the Regency Shares, whether framed
in conversion, replevin, constructive trust, equitable lien or other
theory, may be asserted against such Forward Counterparty with respect to
such security entitlements;
(b) Each of this Agreement, the Forward Agreements and the Confirms
has been duly authorized by the Selling Stockholder or the Trust, as the
case may be; each of this Agreement and the Forward Agreements has been
duly executed and delivered by the Selling Stockholder or the Trust, as the
case may be; assuming due authorization, execution and delivery by the
other parties thereto, each of the Forward Agreements constitutes and, upon
execution and delivery of the Confirms by the Trust, each of the Confirms
will constitute, a valid and legally binding agreement of the Trust
enforceable against the Trust in accordance with its respective terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(c) Neither the Selling Stockholder nor the Trust has taken, directly
or indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, under the Exchange Act
or otherwise, stabilization or manipulation of
11
the price of any security of the Company to facilitate the sale or resale
of the Regency Common Stock or the SynDECS;
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the Selling
Stockholder or the Trust of the transactions contemplated herein or in the
Forward Arrangements, except (1) such as may have been obtained under the
Act, (2) such as may be required to be obtained by the Company, Holdings or
the Underwriters under the rules of the National Association of Securities
Dealers, Inc. or the New York Stock Exchange, and (3) such as may be
required under federal securities laws or state securities or Blue Sky laws
in connection with the purchase and sale of the SynDECS by the Underwriters
or the delivery of the Regency Shares pursuant to the terms of the Forward
Arrangements and the SynDECS and such other approvals as have been
obtained;
(e) The delivery of the Regency Shares pursuant to the terms of the
Forward Arrangements and the consummation of any other of the transactions
herein and therein contemplated by the Selling Stockholder and the Trust,
as the case may be, and the performance by the Selling Stockholder and the
Trust, as the case may be, of their obligations hereunder and thereunder
will not conflict with, result in a breach or violation of, or constitute a
default under (i) any law applicable to the Selling Stockholder, the (ii)
charter or by-laws of the Selling Stockholder or the Trust or (iii) the
terms of any indenture or other agreement or instrument to which the
Selling Stockholder or any of its subsidiaries is a party or bound, or any
judgment, order or decree applicable to the Selling Stockholder or any of
its subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Selling
Stockholder or any of its subsidiaries, other than, in the case of clauses
(i) and (iii), such conflicts, breaches, violations or defaults which, if
determined adversely to the Selling Stockholder, would not reasonably be
expected to have a material adverse effect on the consummation of the
transactions contemplated hereby and by the Forward Arrangements;
(f) In respect of any statements in or omissions from the Company
Registration Statement or the Company Prospectus or any amendments or
supplements thereto made in reliance upon and in conformity with the
Selling Stockholder Information, the Selling Stockholder hereby makes the
same representations and warranties to each Underwriter as the Company
makes to such Underwriter under Section 2(b) (excluding any proviso);
(g) The execution and delivery of the Forward Agreements do not, and
the execution and delivery of the Stock Loan Agreement (as defined herein)
and the performance of the Forward Agreements and the Stock Loan Agreement
by the parties thereto in accordance with their respective terms will not,
violate Section 7 of the Exchange Act or Regulations T, U or X of the Board
of Governors of the Federal Reserve System; and
(h) The statements constituting Selling Stockholder Information set
forth in the Company Registration Statement and the Company Prospectus
under the caption "Plan of Distribution" and in the Holdings Registration
Statement and Holdings Prospectus under
12
the captions "Relationship among Citigroup, Regency and the Selling
Shareholder" and "Underwriting" are, insofar as the statements constitute a
summary of the documents referred to therein, accurate and complete in all
material respects.
Any certificate signed by any officer of the Selling Stockholder and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the SynDECS shall be deemed a representation and warranty
by the Selling Stockholder, as to matters covered thereby, to each Underwriter.
4. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, Holdings agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly,
to purchase from Holdings, at a purchase price of $32.560 per SynDECS with
a principal amount of $32.560, the amount of the Underwritten SynDECS set
forth opposite such Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, Holdings hereby grants an
option to the several Underwriters to purchase, severally and not jointly,
up to 1,080,000 Option SynDECS with an aggregate principal amount of
$35,164,800 at the same purchase price per SynDECS as the Underwriters
shall pay for the Underwritten SynDECS. The option may be exercised only to
cover over-allotments in the sale of the Underwritten SynDECS by the
Underwriters. The option may be exercised in whole or in part at any time
(but not more than once) on or before the 30th day after the date of the
Holdings Prospectus Supplement upon written or facsimile notice by the
Representatives to Holdings setting forth the number of Option SynDECS as
to which the several Underwriters are exercising the option and the
settlement date. The number of Option SynDECS to be purchased by each
Underwriter shall be the same percentage of the total number of Option
SynDECS to be purchased by the several Underwriters as such Underwriter is
purchasing of the Underwritten SynDECS, subject to such adjustments as you
in your absolute discretion shall make to eliminate any fractional SynDECS.
(c) As compensation to the Underwriters for their commitment
hereunder, and in view of the fact that the issuance of the SynDECS is
integrally related to the Selling Stockholder's sale of the Regency Shares,
the Selling Stockholder agrees to pay to the Underwriters, at the time of
each delivery of SynDECS pursuant to Section 5 hereof, an amount equal to
$0.9768 per DECS being delivered at such time.
5. Delivery and Payment. Delivery of and payment for the Underwritten
SynDECS and the Option SynDECS (if the option provided for in Section 4(b)
hereof shall have been exercised on or before the third Business Day prior to
the Closing Date) shall be made at 10:00 A.M., New York City time, on June 24,
2003 or at such time on such later date not later than three Business Days after
the foregoing date as the Representatives and Holdings shall determine, which
date and time may be postponed by agreement among the Representatives and
Holdings or as provided in Section 13 hereof (such date and time of delivery and
payment for the
13
SynDECS herein called the "Closing Date"). Delivery of the SynDECS shall be made
to the Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of the
purchase price thereof to or upon the order of Holdings by wire transfer payable
in immediately available funds to such accounts with such financial institutions
as Holdings may direct. Delivery of the SynDECS shall be made through the
facilities of the Depository Trust Company unless the Representatives shall
otherwise instruct.
If the option provided for in Section 4(b) hereof is exercised after the
third Business Day prior to the Closing Date, Holdings will deliver the Option
SynDECS (at the expense of Holdings) to the Representatives on the date
specified by the Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of Holdings
by wire transfer payable in immediately available funds to such accounts with
such financial institutions as Holdings may direct. If settlement for the Option
SynDECS occurs after the Closing Date, Holdings, the Company and the Selling
Stockholder will deliver to the Representatives on the settlement date for the
Option SynDECS, and the obligation of the Underwriters to purchase the Option
SynDECS shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 11 hereof.
6. Offering by the Underwriters. It is understood that the several
Underwriters propose to offer the SynDECS for sale to the public as set forth in
the Holdings Prospectus.
7. Agreements of Holdings. Holdings agrees with the several Underwriters
that:
(a) Holdings will cause any Holdings Preliminary Prospectus Supplement
and the Holdings Prospectus Supplement to be filed pursuant to Rule 424
under the Act and will notify you promptly of such filing. During the
period in which a prospectus relating to the SynDECS is required to be
delivered under the Act, Holdings will notify you promptly of the time when
any amendment to the Holdings Registration Statement has become effective
or any subsequent supplement to the Holdings Prospectus has been filed and
of any request by the Commission for any amendment of or supplement to the
Holdings Registration Statement or the Holdings Prospectus or for
additional information; it will prepare and file with the Commission,
promptly upon your request, any amendments or supplements to the Holdings
Registration Statement or Holdings Prospectus, which, in your opinion, may
be necessary or advisable in connection with the distribution of the
SynDECS by the Underwriters; it will file no amendment or supplement to the
Holdings Registration Statement or the Holdings Prospectus (other than any
prospectus supplement relating to the offering of securities other than the
SynDECS registered under the Holdings Registration Statement or any
document required to be filed under the Exchange Act which upon filing is
deemed to be incorporated by reference therein) to which you shall
reasonably object by notice to
14
Holdings after having been furnished a copy a reasonable time prior to the
filing; and it will furnish to you at or prior to the filing thereof a copy
of any such prospectus supplement or any document which upon filing is
deemed to be incorporated by reference in the Holdings Registration
Statement or Holdings Prospectus.
(b) Holdings will advise you, promptly after it shall receive notice
or obtain knowledge thereof, of the issuance by the Commission of any stop
order suspending the effectiveness of the Holdings Registration Statement,
of the suspension of the qualification of the SynDECS for offering or sale
in any jurisdiction, or of the initiation or threatening of any proceeding
for any such purpose; and it will promptly use its best efforts to prevent
the issuance of any stop order or to obtain its withdrawal if such a stop
order should be issued.
(c) Within the time during which a prospectus relating to the SynDECS
is required to be delivered under the Act, Holdings will comply with all
requirements imposed upon it by the Act, as now and hereafter amended, and
by the Rules and Regulations, as from time to time in force, so far as
necessary to permit the continuance of sales of or dealings in the SynDECS
as contemplated by the provisions hereof and the Holdings Prospectus. If
during such period any event occurs as a result of which the Holdings
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances then
existing, not misleading, or if during such period it is necessary to amend
or supplement the Holdings Registration Statement or the Holdings
Prospectus to comply with the Act, Holdings will promptly notify you and
you will amend or supplement the Holdings Registration Statement or the
Holdings Prospectus (at the expense of Holdings) so as to correct such
statement or omission or effect such compliance.
(d) Holdings will use its best efforts to qualify the SynDECS for sale
under the securities laws of such jurisdictions as you reasonably
designate, to maintain such qualifications in effect so long as required
for the distribution of the SynDECS and, if requested by the Underwriters,
to arrange for the determination of the legality of the SynDECS for
purchase by institutional investors, except that Holdings shall not be
required in connection therewith to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which
would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
(e) Holdings will furnish to the Underwriters copies of the Holdings
Registration Statement and the Holdings Prospectus (including all documents
incorporated by reference therein), and all amendments and supplements to
the Holdings Registration Statement or the Holdings Prospectus which are
filed with the Commission during the period in which a prospectus relating
to the SynDECS is required to be delivered under the Act (including all
documents filed with the Commission during such period which are deemed to
be incorporated by reference therein), in each case in such quantities as
you may from time to time reasonably request.
15
(f) So long as any of the SynDECS are outstanding, Holdings agrees to
furnish to you, upon your request (i) as soon as available, copies of all
reports to Holdings' security holders generally and (ii) all reports and
financial statements filed by or on behalf of Holdings with the Commission
or any national securities exchange.
(g) Holdings will make generally available to its security holders and
to you as soon as practicable, but in any event not later than 15 months
after the end of Holdings' current fiscal quarter, an earnings statement
(which need not be audited) covering a 12-month period beginning after the
date upon which the Holdings Prospectus Supplement is filed pursuant to
Rule 424 under the Act, which shall satisfy the provisions of Section 11(a)
of the Act.
(h) Holdings will use its best efforts to cause an application for the
listing of the SynDECS on the New York Stock Exchange and for the
registration of the SynDECS under the Exchange Act to become effective.
(i) Holdings will not, without the consent of Citigroup Global Markets
Inc., offer, sell, contract to offer or sell or otherwise dispose of any
securities, including any backup undertaking for such securities, of
Holdings, in each case that are substantially similar to the SynDECS or any
security convertible into or exchangeable for the SynDECS or such
substantially similar securities, during the period beginning the date
hereof and ending the Closing Date, provided however, that Holdings and its
affiliates may enter into hedging transactions relating to the SynDECS and
the residual share agreement relating to the SynDECS.
8. Agreements of the Company. The Company agrees with the several
Underwriters and the Selling Stockholder that:
(a) The Company will use its best efforts to cause the Company
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the SynDECS, the Company will not file any amendment of the
Company Registration Statement (excluding filings under the Exchange Act
incorporated by reference into the Company Registration Statement) or
amendment or supplement to the Company Prospectus or any Rule 462(b)
Company Registration Statement unless the Company has furnished you,
Holdings and the Selling Stockholder a copy for review prior to filing and
will not file any such proposed amendment or supplement to which you,
Holdings or the Selling Stockholder reasonably objects. Subject to the
foregoing sentence, if the Company Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Company
Prospectus is otherwise required under Rule 424(b), the Company will cause
the Company Prospectus, properly completed, and any amendment or supplement
thereto to be filed in a form approved by the Representatives, Holdings and
the Selling Stockholder with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Representatives, Holdings and the Selling
Stockholder of such timely filing. The Company will promptly advise the
Representatives, Holdings and the Selling Stockholder (1) when the Company
16
Registration Statement, if not effective at the Execution Time, shall have
become effective, (2) when the Company Prospectus, and any amendment or
supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b) or when any Rule 462(b) Company Registration
Statement shall have been filed with the Commission, (3) when, prior to
termination of the offering of the SynDECS, any amendment to the Company
Registration Statement shall have been filed or become effective, (4) of
any request by the Commission or its staff for any amendment of the Company
Registration Statement, or any Rule 462(b) Company Registration Statement,
or for any amendment or supplement to the Company Prospectus or for any
additional information, (5) of the issuance by the Commission of any stop
order suspending the effectiveness of the Company Registration Statement or
the institution or threatening of any proceeding for that purpose and (6)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Regency Common Stock for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Regency Shares
is required to be delivered under the Act, any event occurs as a result of
which the Company Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to
amend the Company Registration Statement or amend or supplement the Company
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will (1) notify the Representatives,
the Selling Stockholder and Holdings of such event, (2) prepare and file
with the Commission, subject to the second sentence of paragraph (a) of
this Section 8, an amendment or supplement which will correct such
statement or omission or effect such compliance and (3) supply any amended
or supplemented Company Prospectus to you in such quantities as you and
Holdings may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives, Holdings and the
Selling Stockholder and counsel for the Underwriters and Holdings, without
charge, signed copies of the Company Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the Company
Registration Statement (without exhibits thereto) and, so long as delivery
of a prospectus relating to the Regency Common Stock by an Underwriter or
dealer may be required by the Act, as many copies of each Company
Preliminary Prospectus and the Company Prospectus and any amendment or
supplement thereto as the Representatives may reasonably request.
17
(e) The Company will, if necessary, cooperate with Holdings for
purposes of the qualification of the SynDECS for sale under the laws of
such jurisdictions as the Representatives may designate and maintenance of
such qualifications in effect so long as required for the distribution of
the SynDECS and the Regency Shares, and the Company will arrange, if
necessary, for the qualification of the Regency Shares for sale under the
laws of such jurisdictions as the Representatives may designate, and will
maintain such qualifications in effect so long as required for the
distribution of the SynDECS and the Regency Shares; provided, that in no
event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising
out of the offering or sale of the Regency Common Stock as contemplated by
the Company Prospectus, in any jurisdiction where it is not now so subject.
(f) The Company will not, and will use its good faith efforts to cause
any other holder of Common Stock not to, without the prior written consent
of the Representatives, offer, sell, contract to sell, pledge, or otherwise
dispose of (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any subsidiary of the Company or any person in
privity with the Company or any subsidiary of the Company), directly or
indirectly, including under any registration statement filed with the
Commission or prospectus supplement relating to an existing shelf
registration statement filed with the Commission (other than pursuant to
registration statements in effect on the date hereof for the benefit of
selling stockholders thereunder), any other shares of Regency Common Stock
or any securities convertible into, or exercisable, or exchangeable for,
shares of Regency Common Stock, or publicly announce an intention to effect
any such transaction, for a period of 90 days after the date of the
Underwriting Agreement except, in each case, in connection with (i) the
offering of the SynDECS pursuant to the terms of this Agreement, (ii) the
Forward Arrangements, the delivery of the Regency Common Stock pursuant to
the terms of such arrangements and the SynDECS and any related stock
lending arrangements, (iii) the concurrent offering of Regency Common Stock
by the Selling Stockholder and (iv) the Concurrent Forward Arrangements;
provided, however, that the Company may issue or sell Regency Common Stock
(A) pursuant to any employee stock option plan, stock ownership plan or
dividend reinvestment plan of the Company in effect at the Execution Time,
(B) upon the conversion of securities or the exercise of warrants
outstanding at the Execution Time and (C) upon the redemption of limited
partnership units of any subsidiary of the Company outstanding at the
Execution Time.
(g) The Company will comply with all applicable securities and other
applicable laws, rules and regulations, including, without limitation, the
Sarbanes Oxley Act, and to use its reasonable best efforts to cause the
Company's directors and officers, in their capacities as such, to comply
with such laws, rules and regulations, including, without limitation, the
provisions of the Sarbanes Oxley Act.
(h) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the
18
Exchange Act or otherwise, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Regency
Common Stock or the SynDECS.
9. Agreements of the Selling Stockholder. The Selling Stockholder agrees
with the several Underwriters and the Company that:
(a) The Selling Stockholder will not, without the prior written
consent of the Representatives, offer, sell, contract to sell, pledge, or
otherwise dispose of, or enter into any transaction which is designed to,
or might reasonably be expected to, result in the disposition of (whether
by actual disposition or effective economic disposition due to cash
settlement or otherwise), directly or indirectly, any other shares of
Regency Common Stock or any securities convertible into, or exercisable, or
exchangeable for, shares of Regency Common Stock by the Selling Stockholder
or any subsidiary of the Selling Stockholder or any person in privity of
contract pursuant to a contract relating to the disposition of such shares
or securities or transactions which are designed to, or might reasonably be
expected to, result in the disposition of such shares or securities with
the Selling Stockholder or any subsidiary of the Selling Stockholder,
including the filing (or participation in the filing) of a registration
statement with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act, or publicly announce
an intention to effect any such transaction, for a period of 90 days after
the date of this Agreement, other than shares of Regency Common Stock
disposed of as bona fide gifts approved by the Representatives and except,
in each case, in connection with (i) the offering of the SynDECS pursuant
to the terms of this Agreement, (ii) the Forward Arrangements, the delivery
of the Regency Common Stock pursuant to the terms of such arrangements and
the SynDECS and any related stock lending arrangements, (iii) the
concurrent offering of Regency Common Stock by the Selling Stockholder and
(iv) the Concurrent Forward Arrangements.
(b) The Selling Stockholder will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Regency Common Stock or the
SynDECS.
(c) The Selling Stockholder will advise the Representatives and
Holdings promptly, and if requested by you or Holdings, will confirm such
advice in writing, so long as delivery of a prospectus relating to the
Regency Common Stock (including in connection with the offering and sale of
the SynDECS) by an underwriter or dealer may be required under the Act, of
(i) any change in information in the Company Registration Statement or the
Company Prospectus relating to the Selling Stockholder or (ii) any new
material information relating to the Company or relating to any matter
stated in the Company Prospectus which comes to the attention of the
Selling Stockholder.
19
10. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwritten SynDECS and the Option SynDECS, as
the case may be, shall be subject to the accuracy of the representations and
warranties on the part of Holdings, the Company and the Selling Stockholder
contained herein as of the Execution Time, the Closing Date and any settlement
date pursuant to Section 4(b) hereof, to the accuracy of the statements of
Holdings, the Company and the Selling Stockholder made in any certificates
pursuant to the provisions hereof, to the performance by Holdings, the Company
and the Selling Stockholder of their respective obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the Holdings
Registration Statement shall have been issued and no proceeding for that
purpose shall have been instituted or, to the knowledge of Holdings or any
Underwriter, threatened by the Commission, and any request of the
Commission for additional information (to be included in the Holdings
Registration Statement or the Holdings Prospectus or otherwise) shall have
been complied with to the Underwriters' satisfaction.
(b) Holdings shall have furnished to the Representatives the opinion
of Richard Ketchum, General Counsel of Holdings, dated the Closing Date to
the effect that:
(i) Holdings has been duly incorporated and is an existing
corporation in good standing under the laws of the State of New York,
with corporate power and authority to own its properties and conduct
its business as described in the Holdings Prospectus, as amended or
supplemented;
(ii) Holdings is duly qualified to do business as a foreign
corporation in good standing in all jurisdictions in which it owns or
leases substantial properties or in which the conduct of its business
requires such qualification and the failure so to qualify would have a
material adverse effect on Holdings;
(iii) The Indenture has been duly authorized, executed and
delivered by Holdings, has been duly qualified under the Trust
Indenture Act and constitutes a legal, valid and binding instrument
enforceable against Holdings in accordance with its terms (subject, as
to enforcement, to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws generally affecting creditors' rights
and to general principles of equity regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(iv) The SynDECS have been validly authorized and duly executed,
authenticated and delivered and constitute validly issued and
outstanding obligations of Holdings enforceable in accordance with
their terms and entitled to the benefits of the Indenture (subject, as
to enforcement, to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws generally affecting creditors' rights
and to general principles of equity regardless of whether such
enforceability is considered in a proceeding in equity or at law) and
conform in all material respects to the description thereof in the
Holdings Prospectus, as amended or supplemented;
20
(v) The Indenture conforms in all material respects to the
description thereof in the Holdings Prospectus, as amended or
supplemented;
(vi) This Agreement has been duly authorized, executed and
delivered by Holdings;
(vii) No consent, approval, authorization or order of any court
or governmental agency, authority or body is required for the
consummation by Holdings of the transactions contemplated herein or in
the Indenture, except (1) such as have been obtained under the Act and
the Trust Indenture Act, (2) such as may be required to be obtained by
the Company, Holdings or the Underwriters under the rules of the
National Association of Securities Dealers, Inc. or the New York Stock
Exchange, and (3) such as may be required under the securities or Blue
Sky laws of any jurisdiction in connection with the purchase and
distribution of the SynDECS by the Underwriters in the manner
contemplated in this Agreement or the distribution of the Regency
Shares pursuant to the terms of the Forward Agreements and the SynDECS
and such other approvals, if any (specified in such opinion), as have
been obtained;
(viii) The execution, delivery and performance of the Indenture
and this Agreement, and the issuance and sale of the SynDECS in
compliance with the terms and provisions thereof, will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under any statute, any rule, regulation or order
of any governmental agency or body or any court having jurisdiction
over Holdings or any material subsidiary of Holdings or any of their
properties or any agreement or instrument known to such counsel to
which Holdings or any such material subsidiary is a party or by which
Holdings or any such material subsidiary is bound or to which any of
the properties of Holdings or any such material subsidiary is subject,
or the charter or by-laws of Holdings or of any such material
subsidiary (except that such counsel need express no opinion with
respect to (1) the rights to indemnity and contribution contained in
this Agreement which may be limited by federal or state securities
laws or the public policy underlying such laws or (ii) any state
securities or blue sky laws);
(ix) There are no contracts, agreements or understandings known
to such counsel between Holdings and any person granting such person
the right to require Holdings to include any securities of Holdings
owned or to be owned by such person in the securities registered
pursuant to the Holdings Registration Statement; and
(x) The Holdings Registration Statement was declared effective
under the Act, and, to the best of the knowledge of such counsel, no
stop order suspending the effectiveness thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
have been communicated by the Commission to Holdings as being
contemplated by it under the Act; and the Holdings Registration
Statement, as of its Effective Date, the Holdings
21
Prospectus, as of the date of this Agreement and the Closing Date, and
any amendment or supplement thereto, as of its date, comply as to form
in all material respects with the requirements of the Act, the
Exchange Act and the Trust Indenture Act and the applicable Rules and
Regulations thereunder (except that such counsel need express no
opinion as to the financial statements or other data of a financial or
statistical nature or the Statements of Eligibility (Forms T-1) under
the Trust Indenture Act of the Trustee); such counsel has no reason to
believe that the Holdings Registration Statement, as of its Effective
Date, or the Holdings Prospectus, as of the date of this Agreement or
the Closing Date, or any such amendment or supplement, as of its date
and the Closing Date, contained any untrue statement of a material
fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading (except as
aforesaid); the descriptions in the Holdings Registration Statement
and Holdings Prospectus, each as amended or supplemented, of statutes,
legal and governmental proceedings and contracts and other documents
are accurate and fairly present the information required to be shown;
and such counsel does not know of any legal or governmental
proceedings required to be described in the Holdings Prospectus, as
amended or supplemented, which are not described as required or of any
contracts or documents of a character required to be described in the
Holdings Registration Statement or Holdings Prospectus, each as
amended or supplemented, or to be filed as exhibits to the Holdings
Registration Statement, as amended or supplemented, which are not
described and filed as required; it being understood that such counsel
need express no opinion as to the financial statements or other data
of a financial or statistical nature contained in the Holdings
Registration Statement or the Holdings Prospectus, each as amended or
supplemented;
(c) If the Company Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in writing to
a later time, such Company Registration Statement will become effective not
later than (i) 6:00 P.M. New York City time on the date of determination of
the public offering price of the SynDECS, if such determination occurred at
or prior to 3:00 P.M. New York City time on such date or (ii) 9:30 A.M. New
York City time on the Business Day following the day on which the public
offering price of the SynDECS was determined, if such determination
occurred after 3:00 P.M. New York City time on such date; if filing of the
Company Prospectus, or any amendment or supplement thereto, is required
pursuant to Rule 424(b), such Company Prospectus, and any such amendment or
supplement, will be filed in the manner and within the time period required
by such Rule; and no stop order suspending the effectiveness of the Company
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(d) The Company shall have requested and caused Foley & Lardner,
counsel for the Company, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
22
(i) each of the Company and its subsidiaries, including the
Partnership, has been duly incorporated and is validly existing as a
corporation or other organization in good standing under the laws of
the jurisdiction in which it is chartered or organized, with full
corporate power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as described in the
Company Prospectus, as amended or supplemented, and is duly qualified
to do business as a foreign corporation and is in good standing under
the laws of each jurisdiction which requires such qualification and is
subject to no material liability or disability by reason of the
failure to be so qualified in any jurisdiction;
(ii) all the outstanding shares of capital stock or partnership
interests of each subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and nonassessable, and,
except as otherwise set forth on Exhibit A or in the Company
Prospectus, as amended or supplemented, all outstanding shares of
capital stock or partnership interests of such subsidiaries are owned
by the Company either directly or through wholly owned subsidiaries
free and clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other security
interest, claim, lien or encumbrance;
(iii) the Company's authorized equity capitalization is as set
forth in the Company Prospectus; the capital stock of the Company
conforms in all material respects to the description thereof contained
in the Company Prospectus; the outstanding shares of Regency Common
Stock, including the Regency Shares, have been duly and validly
authorized and issued and are fully paid and nonassessable; the
Regency Shares are duly listed, and admitted and authorized for
trading on the New York Stock Exchange; other than the Selling
Stockholder, the holders of outstanding shares of capital stock of the
Company are not entitled to preemptive or other rights to subscribe
for the Regency Shares arising by operation of law or the Company's
Articles of Incorporation or By-laws, or, to the knowledge of such
counsel, under any agreement by which the Company is bound; and,
except as set forth in the Company Prospectus, as amended or
supplemented, to the knowledge of such counsel, no options, warrants
or other rights to purchase, agreements or other obligations to issue,
or rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the Company
are outstanding;
(iv) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property of a
character required to be disclosed in the Company Registration
Statement which is not adequately disclosed in the Company Prospectus,
and there is no franchise, contract or other document relating to the
Company or its subsidiaries of a character required to be described in
the Company Registration Statement or Company Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as
required; and the statements
23
included or incorporated by reference in the Company Prospectus under
the headings "Description of Capital Stock", insofar as they purport
to constitute a summary of the terms of the Regency Common Stock, and
under the headings "Federal Income Tax Considerations" and "Plan of
Distribution" (other than the Selling Stockholder Information) insofar
as such statements summarize legal matters, agreements to which the
Company is a party , documents or proceedings discussed therein, are
accurate and fair summaries of such terms, legal matters, agreements,
documents or proceedings;
(v) the Company Registration Statement has become effective under
the Act; any required filing of the Company Prospectus, and any
amendments or supplements thereto, pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b);
to the knowledge of such counsel, no stop order suspending the
effectiveness of the Company Registration Statement has been issued,
no proceedings for that purpose have been instituted or threatened and
the Company Registration Statement and the Company Prospectus (other
than the financial statements and other financial and statistical
information contained therein, as to which such counsel need express
no opinion), each as amended or supplemented, comply as to form in all
material respects with the applicable requirements of the Act and the
Exchange Act and the respective rules thereunder; and, although such
counsel assumes no responsibility for the accuracy, completeness or
fairness of statements made therein except to the extent set forth in
paragraph (iv) above, such counsel has no reason to believe that on
the Effective Date or the date the Company Registration Statement was
last deemed amended the Company Registration Statement contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Company Prospectus as of its date
and on the Closing Date included or includes any untrue statement of a
material fact or omitted or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading (in each case, other than
the financial statements and other financial and statistical
information contained therein, as to which such counsel need express
no opinion);
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the Company is not, and after giving effect to the issuance
of the SynDECS and the delivery of the Regency Shares pursuant to the
terms of the Forward Arrangements and the SynDECS, will not be an
"investment company" as defined in the Investment Company Act of 1940,
as amended;
(viii) no consent, approval, authorization, filing with or order
of any court or governmental agency or body is required to be obtained
by the Company in connection with the consummation by the Company of
the transactions contemplated herein, except (1) such as have been
obtained under the Act,
24
(2) such as may be required to be obtained by the Company, Holdings or
the Underwriters under the rules of the National Association of
Securities Dealers, Inc. or the New York Stock Exchange, and (3) such
as be required under state securities or Blue Sky laws in connection
with the purchase and sale of the SynDECS by the Underwriters in the
manner contemplated in this Agreement or the delivery of the Regency
Shares pursuant to the terms of the Forward Arrangements and the
SynDECS and such other approvals (specified in such opinion) as have
been obtained;
(ix) the execution and delivery by the Company of this Agreement,
its compliance with all of the provisions hereof and the consummation
by the Company of the transactions contemplated herein and, to the
knowledge of such counsel, the consummation by the parties other than
the Company of the transactions contemplated herein (including the
Forward Arrangements) will not conflict with, result in a breach or
violation of, or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or its subsidiaries pursuant to,
(i) the charter (other than Sections 5.2(a), (b), (c) and (f) of the
Articles of Incorporation to the extent addressed by paragraphs (xiii)
and (xiv) below) or by-laws of the Company or its subsidiaries, (ii)
the terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument known to such counsel to which the
Company or any of its subsidiaries (including the Partnership) is a
party or bound or to which its or their property is subject, or (iii)
any statute, law, rule, regulation, judgment, order or decree known to
such counsel to be applicable to the Company or its subsidiaries
(including the Partnership) of any court, regulatory body,
administrative agency, governmental body or arbitrator or other
authority having jurisdiction over the Company or its subsidiaries or
any of its or their properties other than, in the case of clauses (ii)
and (iii), such breaches or violations which, if determined adversely
to the Company, would not reasonably be expected to have a material
adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole or on the consummation of the
transactions contemplated herein; except (1) such as have been, or
will have been prior to the Closing Date, obtained under the Act, (2)
such as may be required to be obtained by the Company, Holdings or the
Underwriters under the rules of the National Association of Securities
Dealers, Inc. or the New York Stock Exchange, and (3) such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and sale of the SynDECS by the Underwriters or the
delivery of the Regency Shares pursuant to the terms of the Forward
Arrangements and the SynDECS;
(x) to such counsel's knowledge, no holders of securities of the
Company have rights to the registration of such securities under the
Company Registration Statement;
25
(xi) the Company has qualified to be taxed as a real estate
investment trust pursuant to Sections 856 through 860 of the Code for
each taxable year since its inception through the most recently
completed fiscal year, and based on assumptions set forth in the
Company Prospectus and certain representations of the Company,
including but not limited to those set forth in an Officer's
Certificate, the Company's present and contemplated organization,
ownership, method of operation, assets and income, taking into account
the SynDECS, the Forward Arrangements, the Regency Shares loaned to
the Forward Counterparties in connection with the Forward Arrangements
and the Concurrent Forward Arrangements, are such that the Company is
in a position under present law to so qualify for the current fiscal
year and in the future;
(xii) the various actions of the Company's Board of Directors
waiving the Ownership Limit (as defined by the Company's Articles of
Incorporation) for the Selling Stockholder and the Forward
Arrangements, as set forth in the resolutions adopted June 11, 2003
(together, the "Board Action"), were duly authorized, are legal, valid
and binding on the Company and remain in full force and effect as of
the date hereof;
(xiii) the Forward Agreements and the Confirms (i) will not
result in a violation by the Forward Counterparties and their
affiliates of the 7% Ownership Limit for the number of Regency Shares
that are the subject of the Forward Agreements and the Confirms
(including, for this purpose, Regency Shares loaned to the Forward
Counterparties in connection with the Forward Agreements and the
Confirms), other than Regency Shares, if any, constituting more than
9.8% by value of the Company's outstanding capital stock (after giving
effect to any Regency Common Stock repurchased by the Company pursuant
to the purchase and sale agreement between the Company and the Selling
Stockholder with respect to $150,000,000 of Regency Common Stock)
during the applicable term of the Forward Agreements and the Confirms
and, if applicable, during the term of the SynDECS and for a period of
90 days thereafter; provided that no Person (as defined in the
Company's Articles of Incorporation) who is an individual as defined
in section 542(a)(2) of the Code (as modified by section 856(h) of the
Code) becomes the Beneficial Owner (as defined in the Company's
Articles of Incorporation) of more than 9.8% by value of the Company's
capital stock solely by reason of directly or indirectly acquiring
ownership of capital stock of the applicable Forward Counterparty
(disregarding any shares of the Company's capital stock other than
those owned by the applicable Forward Counterparty and its
subsidiaries); and provided, further, that the percentage limits
referred to herein shall be adjusted upward appropriately in the event
of any repurchases of Regency Common Stock by the Company other than
repurchases pursuant to the purchase and sale agreement between the
Company and the Selling Stockholder referred to herein; and (ii) will
not result in a violation by the Forward Counterparties and their
affiliates of the Related Tenant Limit (as defined by the Company's
Articles of Incorporation) for the number of Regency Shares that are
the subject of the Forward Agreements and the Confirms (including, for
this purpose, Regency Shares
26
loaned to the Forward Counterparties in connection with the Forward
Agreements and the Confirms), unless and except to the extent that (1)
a Forward Counterparty and its affiliates directly own or
Constructively Own (as defined by the Company's Articles of
Incorporation, but without regard to the Forward Agreements, the
Confirms, the UBS Agreement and the UBS Confirm) Regency Shares that
constitute more than 9.8% by value of the Company's outstanding
capital stock (after giving effect to any Regency Common Stock
repurchased by the Company pursuant to the purchase and sale agreement
referred to herein) less the number of Regency Shares subject to the
Forward Agreements and the Confirms entered into by such Forward
Counterparty and its affiliates during the applicable term of the
Forward Agreements and the Confirms and, if applicable, during the
term of the SynDECS and for a period of 90 days thereafter, or (2) the
Regency Shares subject to the Forward Agreements and the Confirms
entered into by a Forward Counterparty and its affiliates during the
applicable term of the Forward Agreements and the Confirms and, if
applicable, during the term of the SynDECS and for a period of 90 days
thereafter exceeds 9.8% by value of the Company's outstanding capital
stock (after giving effect to any Regency Common Stock repurchased by
the Company pursuant to the purchase and sale agreement referred to
herein);
(xiv) the UBS Agreement will not cause Holdings and its
affiliates to be considered as owning shares of Regency Common Stock
in excess of the Related Tenant Limit (as defined in the Company's
Articles of Incorporation) for purposes of the limitations set forth
in Sections 5.2(b) and 5.2(f) of the Company's Articles of
Incorporation or to own the shares of Regency Common Stock covered by
the UBS Agreement for purposes of the 7% Ownership Limit.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Florida or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of fact,
to the extent they deem proper, on certificates of responsible officers of
the Company and public officials. References to the Company Prospectus in
this paragraph (e) shall also include any amendments or supplements thereto
at the Closing Date.
(e) The Selling Stockholder shall have requested and caused Hogan &
Hartson L.L.P., counsel for the Selling Stockholder, to have furnished to
the Representatives their opinion, dated the Closing Date and addressed to
the Representatives, to the effect that:
(i) upon payment for the Regency Shares as provided in the
applicable Forward Agreement and Confirm, and the crediting of such
Regency Shares on the books of The Depository Trust Company to the
securities accounts (within the meaning of Section 8-501 of the UCC)
of the various Forward Counterparties (assuming that each of the
Forward Counterparties lacks notice of any "adverse
27
claim" (within the meaning of Section 8-102 of the UCC) to the Regency
Shares), (A) each of the Forward Counterparties will acquire valid
"security entitlements" in respect of the Regency Shares purchased by
such Forward Counterparty (within the meaning of Section 8-102 of the
UCC) and (B) no action based on any "adverse claim" (within the
meaning of Section 8-102 of the UCC) to the Regency Shares, whether
framed in conversion, replevin, constructive trust, equitable lien or
other theory, may be asserted against such Forward Counterparty with
respect to such security entitlements;
(ii) the statements (1) in the second paragraph under the caption
"Relationship Among Citigroup, Regency and the Selling Shareholder"
and in the fifth paragraph (excluding the last three sentences
thereof) under the caption "Underwriting" in the Holdings Prospectus
Supplement and (2) in the first paragraph and the second sentence of
the second paragraph under the caption "Prospectus Supplement
Summary--The Offering" and the first paragraph under the caption "Plan
of Distribution" (excluding the third last sentence and the last
sentence thereof) in the Company Prospectus Supplement, to the extent
that such statements summarize the provisions of the agreements or
documents identified therein, have been reviewed by us and are correct
in all material respects;
(iii) the Forward Agreements and the Stock Loan Agreement do not,
and the performance of the obligations thereunder by the Trust in
accordance with their respective terms will not, violate Section 7 of
the Exchange Act or Regulations T, U or X of the Board of Governors of
the Federal Reserve System.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters, and (B) as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Selling Stockholder and public officials.
(f) The Selling Stockholder shall have requested and caused Jeffrey
Klopf, General Counsel of the Selling Stockholder, to have furnished to the
Representatives his opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) each of this Agreement, the Forward Agreements and the
Confirms has been duly authorized, executed and delivered by the
Selling Stockholder or the Trust, as the case may be; assuming due
authorization, execution and delivery by the other parties thereto,
each of the Forward Agreements and the Confirms constitutes a valid
and legally binding agreement of the Trust enforceable against the
Trust in accordance with its respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
28
(ii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the
Selling Stockholder or the Trust of the transactions contemplated
herein or in the Forward Arrangements, except (1) such as may have
been obtained under the Act, (2) such as may be required to be
obtained by the Company, Holdings or the Underwriters under the rules
of the National Association of Securities Dealers, Inc. or the New
York Stock Exchange, and (3) such as may be required under the state
securities or Blue Sky laws of any jurisdiction in connection with the
purchase and distribution of the SynDECS by the Underwriters in the
manner contemplated in this Agreement or the delivery of the Regency
Shares pursuant to the terms of the Forward Arrangements and the
SynDECS and such other approvals (specified in such opinion) as have
been obtained; and
(iii) the delivery of the Regency Shares pursuant to the terms of
the Forward Arrangements and the consummation of any other of the
transactions herein and therein contemplated by the Selling
Stockholder and the Trust, as the case may be, and the performance by
the Selling Stockholder and the Trust, as the case may be, of their
obligations hereunder and thereunder will not conflict with, result in
a breach or violation of, or constitute a default under any law
(excluding Section 7 of the Exchange Act and Regulations T, U, and X
of the Board of Governors of the Federal Reserve System) or the
charter or By-laws of the Selling Stockholder or the terms of any
indenture or other agreement or instrument known to such counsel and
to which the Selling Stockholder or any of its subsidiaries is a party
or bound, or any judgment, order or decree known to such counsel to be
applicable to the Selling Stockholder or any of its subsidiaries of
any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Selling Stockholder or any
of its subsidiaries, other than such breaches or violation which, if
determined adversely to the Selling Stockholder, would not have a
material adverse effect on the consummation of the transactions
contemplated hereby and by the Forward Arrangements.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent he deems proper, on certificates of responsible
officers of the Selling Stockholder and public officials.
(g) The Selling Stockholder shall have requested and caused, David P.
Russell, Senior Counsel, Treasury Operations, for GECC, to have furnished
to the Representatives his opinion, dated the Closing Date and addressed to
the Representatives, to the effect that:
(i) the GE UA Guarantee has been duly authorized by GECC, has
been or will be duly executed and delivered by GECC, and upon
execution and delivery by GECC will constitute a valid and legally
binding agreement of GECC enforceable against GECC in accordance with
its terms;
29
(ii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by GECC
of the transactions contemplated in the GE UA Guarantee, except such
as may have been obtained; and
(iii) the execution and delivery of the GE UA Guarantee and the
consummation of the transactions therein contemplated by GECC and the
fulfillment of the terms thereof by GECC will not conflict with,
result in a breach or violation of, or constitute a default under any
law or the charter or By-laws of GECC or the terms of any indenture or
other agreement or instrument known to such counsel and to which GECC
or any of its subsidiaries is a party or bound, or any judgment, order
or decree known to such counsel to be applicable to GECC or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over GECC or any
of its subsidiaries.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent he deems proper, on certificates of responsible
officers of the Selling Stockholder and public officials.
(h) The Representatives shall have received from Cleary, Gottlieb,
Steen & Hamilton, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with respect
to the issuance and sale of the SynDECS, the Indenture, the Holdings
Registration Statement, the Holdings Prospectus (together with any
amendment or supplement thereto) and other related matters as the
Representatives may reasonably require, and each of Holdings, the Company
and the Selling Stockholder shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to
pass upon such matters.
(i) The Representatives shall have received from Sullivan & Cromwell
LLP a letter dated the Closing Date addressed to the Representatives to the
effect that, in such counsel's opinion, the Company Registration Statement,
and the Company Prospectus, as of the Effective Date of the Company
Registration Statement, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Act and the
applicable rules and regulations of the Commission thereunder; nothing that
came to such counsel's attention in the course of such review has caused
such counsel to believe that the Company Registration Statement, as of its
Effective Date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Company
Prospectus, as of its date, contained any untrue statement of a material
fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of the
30
circumstances under which they were made, not misleading; nothing that came
to the attention of such counsel in the course of the procedures described
has caused such counsel to believe that the Company Prospectus, as it may
be amended or supplemented, as of the Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; such counsel need
express no opinion or belief as to the financial statements or other
financial or statistical data contained in the Company Registration
Statement or the Company Prospectus.
(j) Holdings shall have furnished to you a certificate, dated the
Closing Date, of the Chairman of the Board, any Vice Chairman, the
President or any Vice President and of the principal financial or
accounting officer, the Treasurer or the Controller of Holdings to the
effect that the signers of such certificate have carefully examined the
Holdings Registration Statement, the Holdings Prospectus and this Agreement
and that:
(i) the representations and warranties of Holdings in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date, and Holdings has complied
in all material respects with all the agreements and satisfied all the
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Holdings
Registration Statement has been issued, and no proceedings for that
purpose have been instituted or, to their knowledge, threatened;
(iii) the Holdings Registration Statement, including any
supplements or amendments thereto, does not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; the Holdings Prospectus, including any
supplements or amendments thereto, does not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and since the Effective Date of the Holdings Registration
Statement there has not occurred any event concerning which
information is required to be contained in an amended or supplemented
Holdings Prospectus concerning which such information is not contained
therein; and
(iv) there have been no material adverse changes in the general
affairs of Holdings and its subsidiaries taken as a whole or in the
financial position as shown by information contained in the Holdings
Registration Statement and the Holdings Prospectus, other than changes
disclosed in or contemplated by the Holdings Registration Statement
and the Holdings Prospectus.
(k) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
or two other authorized signatories, dated the Closing Date, to the effect
that the signers of such certificate have carefully examined the Company
Registration Statement, the Company Prospectus, any amendments or
supplements to the Company Prospectus and this Agreement and that:
31
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Company
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Company Prospectus
(exclusive of any amendment or supplement thereto), there has been no
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Company Prospectus (exclusive of any
amendment or supplement thereto).
(l) The Selling Stockholder shall have furnished to the
Representatives a certificate, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Selling
Stockholder, or two other authorized signatories, dated the Closing Date,
to the effect that the signers of such certificate have carefully examined
the Company Registration Statement, the Company Prospectus, any amendment
or supplement to the Company Prospectus, the Forward Agreements and this
Agreement and that the representations and warranties of the Selling
Stockholder in this Agreement are true and correct in all material respects
on and as of the Closing Date to the same effect as if made on the Closing
Date.
(m) The Representatives shall have received on the Closing Date
letters from PricewaterhouseCoopers LLP and KPMG LLP, with respect to the
Holdings Registration Statement and the Holdings Prospectus at the time of
the Agreement, to the effect that:
(i) They are independent auditors with respect to Holdings within
the meaning of the Act and the applicable published rules and
regulations thereunder.
(ii) In their opinion, the consolidated financial statements and
financial statement schedules audited by them and incorporated by
reference in the Holdings Registration Statement comply as to form in
all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published rules and
regulations.
(iii) They have read the minutes of the meetings of the board of
directors of Holdings and its subsidiaries as set forth in the minute
books of all such meetings through the date as set forth therein.
32
(iv) With respect to the unaudited financial statements, if any,
included or incorporated by reference in the Holdings Registration
Statement, they have:
(1) Performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial statement information as described in SAS No. 100,
Interim Financial Information, on the unaudited condensed
consolidated financial statements for these periods, described in
(iv).
(2) Inquired of certain officials of Holdings who have
responsibility for financial statement and accounting matters
whether the unaudited condensed consolidated financial statements
referred to in (iv)(1) comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act
as it applies to Form 10-Q and the related published rules and
regulations.
(v) Nothing came to their attention as a result of the foregoing
procedures, however, that caused them to believe that:
(1) Any material modifications should be made to the
unaudited condensed consolidated financial statements described
in (iv), incorporated by reference in the Holdings Registration
Statement, for them to be in conformity with generally accepted
accounting principles.
(2) The unaudited condensed consolidated financial
statements described in (iv) do not comply as to form in all
material respects with the applicable accounting requirements of
the Exchange Act as it applies to Form 10-Q and the related
published rules and regulations.
(vi) (1) At the date of the most recent interim period financial
statement, there was any change in the capital stock, increase in
long-term debt, or any decreases in the consolidated net current
assets or stockholders' equity of Holdings as compared with amounts
shown in the most recent quarter end unaudited condensed financial
balance sheet incorporated by reference in the Holdings Registration
Statement or (2) for the period from the most recent quarter end to a
subsequent specified date not more than five business days prior to
the date of such letter, there were any decreases, as compared with
the corresponding period in the preceding year, in consolidated
revenues, or income before extraordinary items, except in all
instances for changes, increases, or decreases that the Holdings
Registration Statement discloses have occurred or may occur.
(vii) In addition to the procedures performed above, they have
carried out certain other specified procedures, not constituting an
audit, with respect to certain dollar amounts, percentages and ratios
which are included in the Holdings Prospectus and which are specified
by the Underwriters and have found such dollar amounts, percentages
and ratios to be in agreement, except as noted in such
33
letter, with the relevant accounting, financial and other records of
Holdings and its subsidiaries identified in such letter.
(n) The Company shall have requested and caused KPMG LLP to have
furnished to the Representatives and the Selling Stockholder, at the
Execution Time and at the Closing Date, letters, dated respectively as of
the Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable Rules and Regulations thereunder and that they have
performed a review of the unaudited interim financial information of the
Company for the three-month period ended March 31, 2003, and as at March
31, 2003 in accordance with Statement on Auditing Standards No. 100, and
stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules and, if applicable, pro forma financial
statements included or incorporated by reference in the Company
Registration Statement and the Company Prospectus and reported on by
them comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related Rules and Regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their
limited review, in accordance with standards established under
Statement on Auditing Standards No. 100, of the unaudited interim
financial information for the three-month period ended March 31, 2003,
and as at March 31, 2003, incorporated by reference in the Company
Registration Statement and the Company Prospectus; carrying out
certain specified procedures (but not an examination in accordance
with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors and the executive, audit and
investment committees of the Company and its subsidiaries; and
inquiries of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to December 31,
2003, nothing came to their attention which caused them to believe
that:
(1) any unaudited financial statements included or
incorporated by reference in the Company Registration Statement
and the Company Prospectus do not comply as to form in all
material respects with applicable accounting requirements of the
Act and with the related Rules and Regulations with respect to
financial statements included or incorporated by reference in
quarterly reports on Form 10-Q under the Exchange Act; and said
unaudited financial statements are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements
34
included or incorporated by reference in the Company Registration
Statement and the Company Prospectus;
(2) with respect to the period subsequent to March 31, 2003,
there were any changes, at a specified date not more than five
days prior to the date of the letter, in the consolidated capital
stock (other than issuances of capital stock in connection with
dividend reinvestment plans, upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and
upon conversions of convertible securities, in each case which
were outstanding on the date of the latest balance sheet included
or incorporated by reference in the Company Prospectus) or any
increase in the consolidated mortgage loans payable or long-term
debt of the Company and its subsidiaries or the Partnership and
its subsidiaries, or any decreases in total assets or
stockholders' equity or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the amounts shown
on the March 31, 2003 consolidated balance sheet included or
incorporated by reference in the Company Registration Statement
and the Company Prospectus, or for the period from April 1, 2003
to such specified date there were any decreases, as compared with
the comparable period of the preceding year consolidated net
revenues or operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in
all instances for changes or decreases set forth in such letter,
in which case the letter shall be accompanied by an explanation
by the Company as to the significance thereof unless said
explanation is not deemed necessary by the Representatives; or
(3) the information included or incorporated by reference in
the Company Registration Statement and the Company Prospectus in
response to Regulation S-K, Item 301 (Selected Financial Data),
Item 302 (Supplementary Financial Information), and Item 503(d)
(Ratio of Earnings to Fixed Charges) is not in conformity with
the applicable disclosure requirements of Regulation S-K;
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Company Registration Statement and the Company Prospectus
and in Exhibit 12 to the Company Registration Statement, including the
information set forth under the captions "Selected Consolidated
Financial Data" in the Company Prospectus and the information included
or incorporated by reference in Items 1, 6 and 7 of the Company's
Annual Report on Form 10-K, incorporated by reference in the Company
Registration Statement and the Company Prospectus, and the information
included in the "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or incorporated by
reference in the Company's Quarterly Reports on Form 10-Q,
incorporated by
35
reference in the Company Registration Statement and the Company
Prospectus, agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
References to the Company Prospectus in this paragraph (n) include any
amendment or supplement thereto at the date of the letter.
(o) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Holdings Registration Statement
(exclusive of any amendment thereof) and the Holdings Prospectus (exclusive
of any amendment or supplement thereto), there shall not have been (i) any
change or decrease specified in the letter or letters referred to in
paragraph (m) above or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or otherwise),
earnings, business or properties of Holdings and its subsidiaries, taken as
a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Holdings Prospectus
(exclusive of any amendment or supplement thereto) the effect of which, in
any case referred to in clause (i) or (ii) above, is, in the sole judgment
of the Representatives, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or delivery of the SynDECS as
contemplated by the Holdings Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any amendment or
supplement thereto).
(p) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Company Registration Statement (exclusive
of any amendment thereof) and the Company Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (n) above or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Company Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the sole judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the SynDECS as contemplated by the Company
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto).
(q) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the debt securities of Holdings or the
Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given of
any intended or potential decrease in any such rating.
36
(r) At the Execution Time, the Company shall have used good faith
efforts to furnish to the Representatives a letter substantially in the
form of Exhibit B hereto from each executive officer and director of the
Company addressed to the Representatives.
(s) The SynDECS shall have been listed and admitted and authorized for
trading on the New York Stock Exchange, and satisfactory evidence of such
actions shall have been provided to the Representatives.
(t) The Confirms shall have been executed and delivered by the Trust
and the Forward Counterparties, substantially in the form set forth in
Exhibit A to the respective Forward Agreement and with such pricing terms
as may be agreed by the Selling Stockholder and Holdings in connection with
the pricing of the SynDECS.
(u) An agreement relating to stock lending arrangements (the "Stock
Loan Agreement") shall have been executed and delivered by the Trust (and
its agent) and Citigroup Global Markets Inc., substantially in the form of
the Concurrent Stock Loan Agreement (but excluding the provisions in
Section 6 of the Supplemental Securities Loan Agreement relating to the
assignment of the stock loan and related matters) and with such other
changes as the parties may agree.
(v) Prior to the Closing Date, the Company and the Selling Stockholder
shall have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 10 shall not have been
fulfilled when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company and
the Selling Stockholder in writing or by telephone or facsimile confirmed in
writing.
The documents required to be delivered by this Section 10 shall be
delivered to Cleary, Gottlieb, Steen & Hamilton, 1 Liberty Plaza, New York, New
York 10006, attention of Raymond B. Check, Esq., on the Closing Date.
11. Reimbursement of Expenses. The Company and the Selling Stockholder
jointly and severally covenant and agree with each of the several Underwriters
and each of the several Forward Counterparties that, whether or not the
transactions contemplated in this Agreement are consummated or this Agreement is
terminated, (i) the Selling Stockholder will pay or cause to be paid all
registration, filing and stock exchange or National Association of Securities
Dealers fees, all fees and expenses of complying with securities or blue sky
laws, all printing expenses, messenger and delivery expenses, any fees and
disbursements of any counsel retained by the Selling Stockholder, all
underwriting discounts and commissions and transfer taxes, if any, and any
premiums and other costs of policies of insurance obtained by the Selling
Stockholder against liabilities arising out of the public offering of the
Regency Shares, and
37
(ii) the Company will pay or cause to be paid the fees and disbursements of
counsel and independent public accountants for the Company incurred in
connection with the registration of the Regency Shares under the Act, including
the expenses of any special audits or "cold comfort" letters required by or
incident to such registration, and any premiums and other costs of policies of
insurance obtained by the Company against liabilities arising out of the sale of
the Regency Shares; provided that the Selling Stockholder shall reimburse the
Company for the first $25,000 of fees and disbursements of counsel and
independent public accountants for the Company included in connection with the
registration of the Regency Shares; provided, however, that the Underwriters
agree to pay to the Selling Stockholder up to an amount as agreed by the
Underwriters and the Selling Stockholder in reimbursement of such expenses. It
is understood, however, that, except as provided in this Section and Section 12
hereof, the Underwriters and the Forward Counterparties will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the SynDECS or Regency Shares by them, and any advertising
expenses connected with any offers they may make.
12. Indemnification and Contribution.
(a) Holdings agrees to indemnify and hold harmless the Company, the
Selling Stockholder, each Underwriter, the directors, officers, employees
and agents of the Company, the Selling Stockholder and each Underwriter,
and each person who controls the Company, the Selling Stockholder or any
Underwriter within the meaning of the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Holdings Registration Statement as originally filed or in any amendment
thereof, or in any Preliminary Holdings Prospectus or the Holdings
Prospectus, or in any amendment thereto or supplement thereto (each such
document, a "Holdings Registration Document") or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (ii) any
untrue statement or alleged untrue statement of a material fact contained
in the Company Registration Statement as originally filed or in any
amendment thereof, or in any Preliminary Company Prospectus or the Company
Prospectus, or in any amendment thereof or supplement thereto (each such
document, a "Company Registration Document"), or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but, with respect
to this clause (ii) only, only to the extent such untrue statement, alleged
untrue statement, omission or alleged omission was made in reliance upon
and in conformity with written information furnished by Holdings to the
Company specifically for use therein; and in each such case agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending against any such loss, claim, damage, liability or action;
provided, however, that Holdings will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made in any
38
Holdings Registration Document in reliance upon and in conformity with
written information furnished to Holdings by or on behalf of the Company,
the Selling Stockholder or any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which Holdings may otherwise have.
(b) The Company agrees to indemnify and hold harmless Holdings, the
Selling Stockholder, each Underwriter, the directors, officers, employees
and agents of each Underwriter, the Selling Stockholder and Holdings, and
each person who controls Holdings, the Selling Stockholder or any
Underwriter within the meaning of the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in any
Company Registration Document, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading or (ii) any untrue statement or
alleged untrue statement of a material fact contained in any Holdings
Registration Document, or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, but, with respect to this clause (ii)
only, only to the extent such untrue statement, alleged untrue statement,
omission or alleged omission was made in reliance upon and in conformity
with written information furnished by the Company to Holdings specifically
for use therein; and in each such case agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending against any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made in any Company Registration Document in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of Holdings, the Selling Stockholder or any Underwriter through the
Representatives specifically for inclusion therein; provided, further, that
the Company shall not be liable to any person who participates as an
underwriter in the offering or sale of the SynDECS or the delivery of the
Regency Shares pursuant to the Forward Arrangements or any other person, if
any, who controls such underwriter within the meaning of the Securities Act
in any such case to the extent that any such loss, claim, damage, liability
(or action or proceeding in respect thereof) or expense arises out of such
person's failure to send or give a copy of the final prospectus or
supplement to the persons asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of SynDECS or Regency Shares to such person if
such statement or omission was corrected in such final prospectus or
supplement. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
39
(c) The Selling Stockholder agrees to indemnify and hold harmless
Holdings, the Company, each Underwriter, the directors, officers, employees
and agents of each Underwriter, the Company and Holdings, and each person
who controls Holdings, the Company or any Underwriter within the meaning of
the Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Company Registration Statement as originally
filed or in any amendment thereof, or in any Preliminary Company Prospectus
or the Company Prospectus, or in any amendment thereof or supplement
thereto (each such document, a "Company Registration Document"), or the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading or (ii) any untrue statement or alleged untrue statement of a
material fact contained in any Holdings Registration Document, or the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, but, in each such case, only to the extent such untrue
statement, alleged untrue statement, omission or alleged omission was made
in reliance upon and in conformity with written information furnished by
the Selling Stockholder to the Company or Holdings, as the case may be,
specifically for use in the Company Registration Document or the Holdings
Registration Document, respectively (the "Selling Stockholder
Information"); and in each such case agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending against any
such loss, claim, damage, liability or action. This indemnity agreement
will be in addition to any liability which the Selling Stockholder may
otherwise have. The Company, Holdings and the Underwriters each acknowledge
that the statements identified in writing to Holdings or the Company, as
the case may be, constitute the only information furnished in writing by or
on behalf of the Selling Stockholder for inclusion in the Holdings
Registration Documents or the Company Registration Documents, respectively.
(d) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless Holdings, the Company, the Selling Stockholder and each of
their respective directors, each of Holdings' officers who signs the
Holdings Registration Statement, each of the Company's officers who signs
the Company Registration Statement, and each person who controls Holdings,
the Company or the Selling Stockholder within the meaning of either the Act
or the Exchange Act, against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Holdings Registration Document or Company
Registration Document, or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not
40
misleading, but only with reference to written information relating to such
Underwriter furnished to Holdings or the Company, respectively, by or on
behalf of such Underwriter through the Representatives specifically for
inclusion in the Holdings Registration Documents or the Company
Registration Documents, respectively. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. The
Company, Holdings and the Selling Stockholder each acknowledge that the
statements identified in writing to Holdings or the Company, as the case
may be, constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the Holdings
Registration Documents or the Company Registration Documents, respectively.
(e) Promptly after receipt by an indemnified party under this Section
12 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 12, notify the indemnifying party in writing of
the commencement thereof; but the omission so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a), (b), (c)
or (d) above unless and to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any event, relieve
the indemnifying party from obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a), (b), (c) or (d)
above. The indemnifying party shall be entitled to appoint counsel of
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
the institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless
41
such settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(f) In the event that the indemnity provided in paragraph (a), (b),
(c), (d) or (e) of this Section 12 is unavailable to or insufficient to
hold harmless an indemnified party for any reason, Holdings, the Company,
the Selling Stockholder, and the Underwriters severally agree to contribute
to the aggregate losses, claims, damages and liabilities (including legal
or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which Holdings, the Company, the
Selling Stockholder and one or more of the Underwriters may be subject in
such proportion as is appropriate to reflect the relative benefits received
by Holdings, the Company, the Selling Stockholder and the Underwriters from
the offering of the SynDECS; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the SynDECS) be responsible for any amount in
excess of the underwriting discount or commission applicable to the SynDECS
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, Holdings, the
Company, the Selling Stockholder, and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of Holdings, the Company, the
Selling Stockholder and the Underwriters in connection with the statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. The benefits received by the Selling Stockholder
shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) received by Holdings, and the benefits received
by the Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page of
the Holdings Prospectus. Relative fault shall be determined by reference
to, among other things, whether any untrue or any alleged untrue statement
of a material fact or the omission or alleged omission to state a material
fact relates to information provided by Holdings, the Company or the
Selling Stockholder, or the Underwriters, the intent of the parties and
their relative knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. Holdings, the Company, the
Selling Stockholder and the Underwriters agree that it would not be just
and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (e), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 12, each person who controls an Underwriter within
the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter; and each person who controls Holdings,
the Company or the Selling Stockholder within the meaning of either the Act
or the Exchange Act, each officer of Holdings who shall have signed the
Holdings Registration Statement, each officer of the Company who shall have
signed the Company Registration Statement and each director of Holdings,
the Company or the Selling Stockholder shall have the same rights to
42
contribution as Holdings, the Company or the Selling Stockholder,
respectively; subject in each case to the applicable terms and conditions
of this paragraph (f).
(g) The liability of the Selling Stockholder under the Selling
Stockholder's representations and warranties contained in Section 3 hereof
and under the indemnity and contribution agreements contained in this
Section 12 shall be limited to an amount equal to the price of the Regency
Shares multiplied by the number of Regency Shares sold by the Selling
Stockholder to the Forward Counterparties pursuant to the Forward
Agreements. The Company and the Selling Stockholder may agree, as among
themselves and without limiting the rights of Holdings or the Underwriters
under this Agreement, as to the respective amounts of such liability for
which they each shall be responsible.
13. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the SynDECS agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of SynDECS set forth
opposite their names in Schedule I hereto bears to the aggregate amount of
SynDECS set forth opposite the names of all the remaining Underwriters) the
SynDECS which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
SynDECS which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of SynDECS set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the SynDECS, and
if such nondefaulting Underwriters do not purchase all the SynDECS, this
Agreement will terminate without liability to any nondefaulting Underwriter,
Holdings, the Company or the Selling Stockholder. In the event of a default by
any Underwriter as set forth in this Section 13, the Closing Date shall be
postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in the
Company Registration Statement, the Company Prospectus, the Holdings
Registration Statement and the Holdings Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to Holdings, the Company,
the Selling Stockholder and any nondefaulting Underwriter for damages occasioned
by its default hereunder.
14. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company at or
prior to the Closing Date, if at any time at or prior to such time (i) trading
in any class of Holdings' debt securities or the Company's Common Stock shall
have been suspended by the Commission or the New York Stock Exchange or trading
in securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
a banking moratorium shall have been declared either by Federal or New York
State authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war,
or other calamity or crisis the effect of which on financial markets is such as
to make it, in the sole judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the SynDECS as
contemplated by the Holdings Prospectus (exclusive of any amendment or
43
supplement thereto) or (iv) a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States.
15. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of Holdings, the
Company, the Selling Stockholder or their respective officers, if applicable,
and of the Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter, Holdings, the Company, the Selling Stockholder or any
of the officers, directors or controlling persons referred to in Section 12
hereof, and will survive delivery of and payment for the SynDECS. The provisions
of Sections 11 and 12 hereof shall survive the termination or cancellation of
this Agreement.
16. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to Citigroup Global Markets Inc., General Counsel (fax no.: (212)
816-7912) and confirmed to the General Counsel, care of Citigroup Global Markets
Inc., at 388 Greenwich Street, New York, New York 10013 and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, 4 World Financial Center, New York, New
York 10080, Attention: Scott Eisen, Investment Banking (fax no.: (212)
449-9143); if sent to Holdings, will be mailed, delivered, or telefaxed and
confirmed to it at the address of Holdings set forth in the Holdings
Registration Statement; if sent to the Company, will be mailed, delivered or
telefaxed and confirmed to it at the address of the Company set forth in the
Company Registration Statement; or if sent to the Selling Stockholder will be
mailed, delivered or telefaxed to c/o GE Capital Real Estate, 292 Long Ridge
Road, Stamford, Connecticut 06927, Attention: Legal Operation/Security Capital
(fax no.: (203) 357-6768) and confirmed to it at Hogan & Hartson L.L.P., 555
13th Street NW, Washington, DC, 20004-1109, Attention: J. Warren Gorrell, Jr.
(fax no.: (202) 637-5910).
44
17. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 12 hereof, and no other
person will have any right or obligation hereunder.
18. Applicable Law. This agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
19. Counterparts. This Agreement may be executed by any one or more of the
parties in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
agreement.
20. Headings. The section headings used herein are for convenience only and
shall not affect the construction hereof.
21. Definitions. The terms which follow, when used in this Agreement, shall
have the meanings indicated.
"7% Ownership Limit" means the Ownership Limit, as such term is defined in
the Company's Articles of Incorporation.
"Act" shall mean the Securities Act of 1933, as amended, and the Rules and
Regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" shall mean the Securities and Exchange Commission.
"Company Preliminary Prospectus" shall mean any preliminary prospectus
relating to the Regency Common Stock referred to in Section 2(a) and any
preliminary prospectus included in the Company Registration Statement at its
Effective Date that omits Rule 430A Information.
"Company Prospectus" shall mean the prospectus relating to the Regency
Shares that is first filed pursuant to Rule 424(b) after the Execution Time or,
if filing pursuant to Rule 424(b) is not required, shall mean the form of final
prospectus relating to the Regency Shares included in the Company Registration
Statement at the Effective Date.
"Company Registration Statement" shall mean the registration statement
referred to in paragraph 2(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Company
45
Registration Statement becomes effective prior to the Closing Date, shall also
mean such registration statement as so amended or such Rule 462(b) Company
Registration Statement, as the case may be. Such term shall include any Rule
430A Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Effective Date" shall mean each date and time that (i) with respect to the
Holdings Registration Statement, such the Holdings Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b) Holdings
Registration Statement become or becomes effective, and (ii) with respect to the
Company Registration Statement, such Company Registration Statement any
post-effective amendment or amendments thereto and any Rule 462(b) Company
Registration Statement become or becomes effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the Rules and Regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Holdings Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a) above and any preliminary prospectus included in
the Holdings Registration Statement at the Effective Date that omits Rule 430A
Information.
"Holdings Prospectus" shall mean the prospectus relating to the SynDECS
that is first filed pursuant to Rule 424(b) after the Execution Time or, if
filing pursuant to Rule 424(b) is not required, shall mean the form of final
prospectus relating to the SynDECS included in the Registration Statement at the
Effective Date.
"Holdings Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Holdings
Registration Statement becomes effective prior to the Closing Date, shall also
mean such registration statement as so amended or such Rule 462(b) Holdings
Registration Statement, as the case may be. Such term shall include any Rule
430A Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Investment Company Act" shall mean the Investment Company Act of 1940, as
amended, and the Rules and Regulations of the Commission promulgated thereunder.
"Rule 415," "Rule 424," "Rule 430A," "Rule 462," "Rule 497(h)," "Regulation
S-K" and "Regulation S-X" refer to such Rules and Regulations under the Act.
"Rule 430A Information" shall mean information with respect to the SynDECS,
or the Regency Shares and the offering thereof permitted to be omitted from the
Holdings Registration Statement or the Company Registration Statement,
respectively, when it becomes effective pursuant to Rule 430A.
46
"Rule 462(b) Company Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the initial registration statement referred to in
Section 2(a) above.
"Rule 462(b) Holdings Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating to
the offering covered by the initial registration statement referred to in
Section 1(a) above.
"Rules and Regulations" shall mean the rules and regulations of the
Securities and Exchange Commission.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended.
"UCC" shall mean the Uniform Commercial Code as currently in effect in the
State of New York.
As used herein, the terms "Holdings Registration Statement," "Preliminary
Holdings Prospectus" and "Holdings Prospectus" shall not include the Company
Registration Statement, the Company Preliminary Prospectus or the Company
Prospectus attached thereto.
As used herein, the terms "Company Registration Statement", "Preliminary
Company Prospectus", and "Company Prospectus" shall not include the Holdings
Registration Statement, the Holdings Preliminary Prospectus or the Holdings
Prospectus.
47
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among Holdings,
the Company, the Selling Stockholder and the several Underwriters.
Very truly yours,
CITIGROUP GLOBAL MARKETS HOLDINGS INC.
By: /s/ Mark I. Kleinman
-----------------------------------
Name: Mark I. Kleinman
Title: Executive Vice President,
Treasurer
REGENCY CENTERS CORPORATION
By: /s/ Martin E. Stein, Jr.
-----------------------------------
Name: Martin E. Stein, Jr.
Title: Chairman
SECURITY CAPITAL GROUP INCORPORATED
By: /s/ Philip A. Mintz
-----------------------------------
Name: Philip A. Mintz
Title: Vice President
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
CITIGROUP GLOBAL MARKETS INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: Citigroup Global Markets Inc.
By: /s/ Jeff Horowitz
-----------------------------------
Name: Jeff Horowitz
Title: Managing Director
For themselves and the other
several Underwriters named in
Schedule I to the foregoing Agreement.
48
SCHEDULE I
Number of Underwritten
Underwriters SynDECS to be Purchased
Citigroup Global Markets Inc........................ 3,600,000
Merrill Lynch, Pierce, Fenner
& Smith Incorporated........................... 3,600,000
---------
Total............................. 7,200,000
---------
I-1
Exhibit A
Subsidiaries of Regency Centers Corporation and Equity Ownership Thereof
June 18, 2003
% OF
ENTITY JURISDICTION OWNER(S) NATURE OF INTEREST OWNERSHIP
- ------------------------- -------------- ------------------------------------------ ------------------- ----------
Regency Centers, L.P. Delaware Regency Centers Corporation General Partnership 1.0%
Regency Centers Texas, LLC Limited Partnership 96.3%
Outside Investors Limited Partnership 2.7%
Regency Remediation, LLC Florida Regency Centers, L.P. Member 100%
Queensboro Associates, Georgia Regency Centers, L.P. General Partnership 50%
L.P. Real Sub, LLC (Outside Investor) Limited Partnership 50%
Northlake Village
Shopping Center, LLC Florida Regency Centers, L.P. Member 100%
Regency Southgate Village Alabama Regency Centers, L.P. Member 100%
Shopping Center, LLC
RRG Holdings, LLC Florida Regency Centers, L.P. Member 100%
Regency Opitz, LLC Delaware Regency Centers, L.P. Member 100%
Regency Realty Group, Florida Regency Centers, L.P. Preferred Stock 100%
Inc. Common Stock 7%
RRG Holdings, LLC Common Stock 93%
% OF
ENTITY JURISDICTION OWNER(S) NATURE OF INTEREST OWNERSHIP
- ------------------------- -------------- ------------------------------------------ ------------------- ----------
Regency Realty Colorado, Florida Regency Realty Group, Inc. Common Stock 80%
Inc. Snowden Leftwich Common Stock 20%
(See Note 1)
Chestnut Powder, LLC Georgia Regency Realty Group, Inc. Member 100%
Cherry Street Center, LLC Delaware Regency Realty Group, Inc. Member 100%
Marietta Outparcel, Inc. Georgia Regency Realty Group, Inc. Common Stock 100%
Thompson-Nolensville, LLC Florida Regency Realty Group, Inc. Member 100%
Dixon, LLC Florida Regency Realty Group, Inc. Member 100%
Rhett-Remount, Inc. South Carolina Regency Realty Group, Inc. Common Stock 100%
Edmunson Orange Corp. Tennessee Regency Realty Group, Inc. Common Stock 100%
Tulip Grove, LLC Florida Regency Realty Group, Inc. Member 100%
Hermitage Development, LLC Florida Regency Realty Group, Inc. Member 100%
West End Property, LLC Florida Regency Realty Group, Inc. Member 100%
Tinwood, LLC Florida Regency Realty Group, Inc. Member 50%
Outside Investor Member 50%
Mountain Meadow, LLC Delaware Regency Realty Group, Inc. Member 100%
Middle Tennessee
Development, LLC Delaware Regency Realty Group, Inc. Member 100%
A-2
% OF
ENTITY JURISDICTION OWNER(S) NATURE OF INTEREST OWNERSHIP
- ------------------------- -------------- ------------------------------------------ ------------------- ----------
Hermitage Development II,
LLC Florida Regency Realty Group, Inc. Member 100%
Bordeaux Development, LLC Florida Regency Realty Group, Inc. Member 100%
Atlantic-Pennsylvania,
LLC Florida Regency Realty Group, Inc. Member 100%
8th and 20th Chelsea, LLC Delaware Regency Realty Group, Inc. Member 100%
Regency Somerset, LLC Delaware Regency Realty Group, Inc. Member 100%
Slausen Central, LLC Delaware Regency Realty Group, Inc. Member Note 2
Jog Road, LLC Florida Regency Realty Group, Inc. Member 50%
Outside Investor Member 50%
Southland Centers II, LLC Florida Jog Road, LLC Member 100%
Broadman, LLC Delaware Regency Realty Group, Inc. Member 100%
GME/RRG I, LLC Delaware Regency Realty Group, Inc. Member 50%
Outside Investor Member 50%
K&G/Regency II, LLC Delaware Regency Realty Group, Inc. Member 50%
GME Anaheim, LLC (Outside Investor) Member 50%
RRG-RMC-Tracy, LLC Delaware Regency Centers, L.P. Member 50%
RMC Tracy, LLC (Outside Investor) Member 50%
A-3
% OF
ENTITY JURISDICTION OWNER(S) NATURE OF INTEREST OWNERSHIP
- ------------------------- -------------- ------------------------------------------ ------------------- ----------
Regency Ocean East
Partnership Limited Florida Regency Centers, L.P. General Partnership 25%
WLD Realty, Ltd. (Outside Investor) Limited Partnership 75%
Regency Woodlands/ Texas Regency Centers, L.P. General Partnership 50%
Kuykendahl, Ltd. HEB Grocery Company, LP (Outside Investor) Limited Partnership 50%
OTR/Regency Colorado Ohio Regency Centers, L.P. General Partnership 30%
Realty Holdings, L.P. OTR (nominee for State Teachers Limited Partnership 70%
Retirement Board of Ohio)
OTR/Regency Texas Realty Ohio Regency Centers, L.P. General Partnership 30%
Holdings, L.P. OTR (nominee for State Teachers Limited Partnership 70%
Retirement Board of Ohio)
R&KS Dell Range, LLC Wyoming Regency Centers, L.P. Member 100%
T&M Shiloh Development Texas Regency Centers, L.P. General Partnership 50%
Company Topvalco General Partnership 50%
T&R New Albany
Development Company LLC Ohio Regency Centers, L.P. Member 50%
Member 50%
Luther Properties, Inc. Tennessee Regency Realty Group, Inc. Common Stock 100%
Regency Realty Group, N.E. Florida Regency Realty Group, Inc. Common Stock 100%
Vista Village, LLC Delaware Regency Realty Group, Inc. Member 50%
Civic Partners Vista Village I, LLC Member 50%
A-4
% OF
ENTITY JURISDICTION OWNER(S) NATURE OF INTEREST OWNERSHIP
- ------------------------- -------------- ------------------------------------------ ------------------- ----------
Valleydale, LLC Florida Regency Realty Group, Inc. Member
East Towne Center, LLC Delaware Regency Realty Group, Inc. Member
Regency/DS Ballwin, LLC Missouri Regency Realty Group, Inc. Member 50%
DS Ballwin Partners, Inc. (Outside Member 50%
Investor)
Regency Centers Advisors,
LLC Florida Regency Centers, L.P. Member 100%
RC Georgia Holdings, LLC Georgia Regency Centers, L.P. Member 100%
Regency Centers Georgia, Georgia RC Georgia Holdings LLC General Partnership 1%
L.P. Regency Centers, L.P. Limited Partnership 99%
Regency Centers Texas, LLC Florida Regency Centers Corporation Member 100%
Columbia Regency Retail Delaware Regency Centers, L.P. Member 20%
Partners, LLC Oregon Public Employees
Retirement Fund Member 80%
Columbia Regency Texas 1, Delaware Regency Texas 1, LLC General Partnership 1%
L.P. Columbia Regency Retail Limited Partnership
Partners, LLC 99%
Regency Texas 1, LLC Delaware Columbia Regency Retail
Partners, LLC Member 100%
Columbia Retail Addison, Delaware Columbia Regency Retail Member 100%
LLC Partners, LLC
A-5
% OF
ENTITY JURISDICTION OWNER(S) NATURE OF INTEREST OWNERSHIP
- ------------------------- -------------- ------------------------------------------ ------------------- ----------
Columbia Retail Addison Delaware Columbia Retail Addison, LLC General Partnership 1%
Town Center, Limited Columbia Regency Retail Limited Partnership 99%
Partnership Partners, LLC
Columbia Retail Dulles, Delaware Columbia Regency Retail Member 100%
LLC Partners, LLC
Macquarie CountryWide- Delaware Regency Center, L.P. Member 25%
Regency, LLC Macquarie CountryWide (US)Corporation Member 75%
MCW-RC FL-King's, LLC
(fka MCW-RC Florida, LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Anastasia, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Ocala, LLC (fka
MCW-RC Florida 2, LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Pebblebrooke,
LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Shoppes at 104,
LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC NC-Oakley, LLC
(fka MCW-RC North
Carolina, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
A-6
% OF
ENTITY JURISDICTION OWNER(S) NATURE OF INTEREST OWNERSHIP
- ------------------------- -------------- ------------------------------------------ ------------------- ----------
MCW-RC SC-Merchant's, LLC
(fka MCW-RC South
Carolina, LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC VA-Brookville, LLC
(fka MCW-RC Virginia,
LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC Texas GP, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC TX-Hebron, LLC Delaware Macquarie CountryWide-Regency, LLC Limited Partnership 99.99%
(fka MCW-RC Texas, L.P.) MCW-RC Texas GP, LLC
General Partnership 0.01%
MCW-RC GA-Lovejoy, LLC
(fka MCW-RC Georgia, LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Orchard, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC CO-Cheyenne, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC CA-Campus, LLC
(fka MCW-RC California),
LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC CA-Garden Village,
LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC WA-James, LLC (fka
MCW-RC Washington, LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
A-7
% OF
ENTITY JURISDICTION OWNER(S) NATURE OF INTEREST OWNERSHIP
- ------------------------- -------------- ------------------------------------------ ------------------- ----------
MCW-RC KY-Silverlake, LLC
(fka MCW-RC Kentucky,
LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC AL-Southgate, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Lynn Haven, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Killian Hill,
LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC OH-Milford, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC OR-Hillsboro, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC SC-Rosewood, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
Columbia Retail
Washington 1, LLC Delaware Columbia Regency Retail Partners LLC Member 100%
Columbia Cascade Plaza, Delaware Columbia Regency Retail Washington 1, LLC Member 1%
LLC Columbia Regency Retail Partners, LLC
Member 99%
Columbia Retail Texas 2,
LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
A-8
% OF
ENTITY JURISDICTION OWNER(S) NATURE OF INTEREST OWNERSHIP
- ------------------------- -------------- ------------------------------------------ ------------------- ----------
Columbia Retail MacArthur
Phase II, LP Delaware Columbia Retail Texas 2, LLC Member 1%
Columbia Regency Retail Partners, LLC Member 99%
Note 1: Snowden Leftwich is a Regency employee who is the licensed broker for this entity. Colorado requires that the broker
must own a minimum of 20% of the equity in a licensed entity.
Note 2: Regency is negotiating with an outside investor to participate in Slausen Central, LLC. At this time the extent of
the participation has not been determined.
A-9
Exhibit B-2
Exhibit B
[Letterhead of executive officer, or director of
Corporation]
Regency Centers Corporation
Public Offering of Common Stock
June __, 2003
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
New York, New York 10080
As Representatives of the several Underwriters,
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), among Security Capital
Group Incorporated, a Maryland corporation (the "Selling Stockholder"), Regency
Centers Corporation, a Florida corporation (the "Company"), JPMorgan Chase Bank,
Merrill Lynch International, Wachovia Bank, National Association and each of you
as representatives of a group of Underwriters named therein, relating to an
underwritten public offering of Common Stock, $0.01 par value (the "Common
Stock"), of the Company, and the proposed Underwriting Agreement (the "SynDECS
Underwriting Agreement"), among Citigroup Global Markets Holdings Inc., a New
York corporation ("Holdings"), the Company, the Selling Stockholder, and each of
you as representatives of a group of Underwriters named therein, relating to an
underwritten public offering of SynDECS (Debt Exchangeable for Common Stock)
consisting of the Holdings' Variable Rate Exchange Notes Due June , 2006.
In order to induce you (the "Representatives") and the other Underwriters
to enter into the Underwriting Agreement and SynDECS Underwriting Agreement, as
applicable, the undersigned will not, without the prior written consent of the
Representatives, offer, sell, contract to sell, pledge or otherwise dispose of
(or enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
undersigned or any affiliate of the undersigned or any person in privity with
the undersigned or any affiliate of the undersigned), directly or indirectly,
including the filing (or participation in the filing) of a registration
statement with the Securities and Exchange Commission in respect of, or
establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder with respect to, any shares of Common
Stock or any securities convertible into Common Stock, or publicly announce an
intention to effect any such transaction, for a period of 90 days after the
later of the dates of the Underwriting Agreement and SynDECS Underwriting
Agreement, other than shares of Common Stock disposed of (i) in connection with
the transactions contemplated in the Underwriting Agreement and the SynDECS
Underwriting Agreement (including the related forward purchase contracts and
stock loan agreements) or (ii) as bona fide gifts, so long as the donee of such
gift agrees in writing to be bound by the restrictions set forth herein and
notice of such gift is given to the Representatives.
If for any reason both the Underwriting Agreement and SynDECS Underwriting
Agreement shall be terminated prior to the Closing Date (as defined in the
Underwriting Agreement), the agreement set forth above shall likewise be
terminated.
Yours very truly,
[Signature of executive officer or director]
[Name and address of executive officer or
director]
Exhibit B-2
EXHIBIT 37
DATED: JUNE 18, 2003 ML REF: [ ]
TO: SECURITY CAPITAL SHOPPING MALL BUSINESS TRUST ("PARTY A" )
ADDRESS: C/O GE CAPITAL REAL ESTATE
292 LONG RIDGE ROAD
STAMFORD, CONNECTICUT 06927
ATTENTION: PHILIP MINTZ
FAX: (203) 585-0179
TO: MERRILL LYNCH INTERNATIONAL ("PARTY B")
ADDRESS: MERRILL LYNCH FINANCIAL CENTRE
2 KING EDWARD STREET
LONDON ECIA 1HQ
ENGLAND
FROM: MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
SOLELY AS AGENT
TEL: (212) 449-3149
FAX: (212) 449-2697
Dear Sir / Madam,
The purpose of this letter agreement (this "Confirmation") is to confirm the
terms and conditions of the above-referenced transaction entered into between
Company and Merrill Lynch International ("MLI"), through its agent Merrill
Lynch, Pierce, Fenner & Smith Incorporated, on the Trade Date specified below
(the "Transaction"). This Confirmation constitutes a "Confirmation" as referred
to in the ISDA Master Agreement specified below.
The definitions and provisions contained in the 2000 ISDA Definitions (the "Swap
Definitions") and the 1996 ISDA Equity Derivatives Definitions (the "Equity
Definitions" and together with the Swap Definitions, the "Definitions") in each
case as published by the International Swaps and Derivatives Association, Inc.,
are incorporated into this Confirmation. In the event of any inconsistency
between the Swap Definitions and the Equity Definitions, the Equity Definitions
will govern and in the event of any inconsistency between the Definitions and
this Confirmation, this Confirmation will govern.
This Confirmation supplements, forms part of, and is subject to, the ISDA Master
Agreement dated as of June 18, 2003, as amended and supplemented from time to
time (the "Agreement"), between you and us, with the obligations of Party B
under the Agreement guaranteed by Merrill Lynch & Co., Inc ("ML&Co.") and the
obligations of Party A guaranteed by General Electric Capital Corporation. All
provisions contained in the Agreement govern this Confirmation except as
expressly modified below.
The terms of the particular Transaction to which this Confirmation relates are
as follows:
General Terms:
Party A: Security Capital Shopping Mall Business Trust.
Party B: Merrill Lynch International.
Trade Date: June 18, 2003.
Effective Date: June 24, 2003.
Base Amount: Initially, 3,906,667 Shares. On each Settlement Date,
the Base Amount shall be reduced by the number of
Settlement Shares for such Settlement Date.
Maturity Date: June 18, 2004.
Forward Price:
On the Effective Date, the Initial Forward Price, and
on any other day, (i) the Forward Price on the
immediately preceding calendar day multiplied by the
sum of (A) 1 plus (B) the Daily Rate for such day,
minus (ii) the sum of any cash dividend paid on such
day (other than any cash dividend for which the
ex-dividend date occurred prior to the Effective
Date); provided that if on any Settlement Date an
ex-dividend date for a cash dividend has occurred, but
such dividend has not yet been paid, then, solely for
the purpose of calculating the Settlement Amount for
such Settlement Date, the present value (as determined
by the Calculation Agent) of such dividend shall be
deducted from the Forward Price on such Settlement
Date.
Initial Forward Price: USD31.1355 per Share.
Daily Rate: For any day, (i)(A) the rate as displayed on the
page Feds Open - Index [GO] on the BLOOMBERG
Professional Service minus (B) the Spread divided by
(ii) 360.
Spread: 0.20%.
Shares: Common Stock, $0.01 par value per share, of Regency
Centers Corporation (the "Issuer") (Exchange
identifier: "REG").
Exchange: New York Stock Exchange.
Related Exchange(s): The principal exchanges(s) for options contracts or
futures
2
contracts, if any, with respect to the Shares.
Clearance System: The Depository Trust Company.
Calculation Agent: Merrill Lynch International.
The Calculation Agent shall promptly notify the
parties of its calculations and determinations in
respect of the Transaction. The calculations and
determinations of the Calculation Agent shall be final
absent manifest error. The Calculation Agent shall
promptly correct any instances of manifest error
following any notice of such error from a party. If
Party A in good faith claims that a calculation or
determination is erroneous, both parties shall
promptly negotiate in good faith to resolve the
dispute, failing which Party A shall promptly appoint
two independent leading market dealers and Party B
shall promptly appoint two independent leading market
dealers to make the relevant calculation or
determination. In the case of a calculation, such
calculation shall be the arithmetic mean of the
calculations by the appointed dealers without regard
to the calculations that have the highest and lowest
values (if there are four different calculations), and
in the case of a determination, such determination
shall be the determination agreed upon by at least
three of the four dealers; provided that, if fewer
than four dealers provide a calculation or
determination or if three dealers do not agree on a
determination, then Party A and Party B shall agree on
the appointment of such number of additional dealers
such that the Calculation Agent receives four
calculations or such that three dealers agree on a
determination as the case may be.
Settlement Terms:
Settlement Date: Any Exchange Business Day following the date six
months after the Effective Date, or such earlier date
as agreed to by the parties, and up to and including
the Maturity Date, as designated by Party A in a
written notice (a "Settlement Notice") delivered to
Party B at least ten (10) Exchange Business Days, in
the case of Physical Settlement, and forty-five (45)
Exchange Business Days, in the case of Cash
Settlement, prior to such Settlement Date, unless
different periods for notice are mutually agreed to by
Party A and Party B; provided that the Maturity Date
shall be a Settlement Date if on such date the Base
Amount is greater than zero.
3
Settlement: Settlement of this Transaction shall be Physical
Settlement as specified below unless Party A informs
Party B in writing no fewer than forty-five (45)
Exchange Business Days prior to the scheduled
Settlement Date that Party A has elected Cash
Settlement at Party A's option, unless a different
period for notice is mutually agreed to by Party A and
Party B. In the event that Borrower under that certain
Securities Lending Agency Client Agreement dated as of
June 17, 2003 between Security Capital Shopping Mall
Business Trust and UBS Securities LLC and the
Securities Loan Agreement dated as of February 24,
2002 between UBS Securities LLC and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, as amended and
supplemented by the Supplemental Securities Loan
Agreement dated as of June 18, 2003 among Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Merrill
Lynch International, Security Capital Shopping Mall
Business Trust and UBS Securities LLC (the "Securities
Loan Agreement") does not deliver Shares to Party A
under that Agreement, then Physical Settlement shall
apply and Party A shall have the right to satisfy its
delivery obligation in this Transaction, in whole or
in part, by assigning to Party B the right to receive
an equal number of Shares under the Securities Loan
Agreement. In the event that, upon Borrower's tender
or delivery of Shares or providing for the
satisfaction of such delivery as described herein to
Party A under the Securities Loan Agreement, Party A
fails to return Collateral (as defined in the
Securities Loan Agreement) as required under the
Securities Loan Agreement, Party B shall have the
right to satisfy any portion of its payment obligation
in this Transaction, in whole or in part, by paying
all or part of the amount due to the Borrower and
Party A shall retain an amount of the Collateral under
the Securities Loan Agreement equal to the amount of
Party B's payment to MLI, in which event the Borrower
shall deliver to Party B the number of Shares
corresponding to such payment amount. In the event
that Party B fails to make any payment to Party A
required by this Confirmation, Party A may retain an
amount of Collateral under the Securities Loan
Agreement equal to such payment and assign to Party B
Party A's right to receive Shares in repayment of the
loan evidenced by the Stock Loan Agreement. If
Physical Settlement is elected, either Party A may
assign or, to the extent, but only to the extent, that
Party B concurrently tenders payment to Party A as
required hereunder, Party B may cause Lender to assign
to Party B any right of Party A to receive delivery of
Shares from Borrower under the
4
Securities Loan Agreement to satisfy the delivery
obligation of Party A hereunder with respect to the
number of Shares that Party A is then entitled to
receive from Borrower. In such event, Party A shall
return the Collateral to Borrower upon receipt of
payment by Party B with respect to this Transaction.
Physical Settlement: On any Settlement Date, Party A shall deliver to Party
B a number of Shares equal to the Settlement Shares
for such Settlement Date, and Party B shall deliver to
Party A, by wire transfer of immediately available
funds to an account designated by Party B, an amount
in cash equal to the Settlement Amount for such
Settlement Date, on a delivery versus payment basis.
Party A shall pay all expenses of transfer of the
Settlement Shares described in Section 6.6 of the
Equity Definitions. Party A agrees that the Settlement
Shares delivered in accordance with the terms of this
Transaction will have been held by Party A as of the
Trade Date or will have been acquired by Party A from
holders of Shares and not from the Issuer after the
date hereof and will not be subject to any preemptive
or similar rights and will be free and clear of liens
and other encumbrances.
Cash Settlement: On any Settlement Date, the party indicated below
shall make the specified cash payment by wire transfer
of immediately available funds to the designated
account:
If the Forward Price equals or exceeds the Final
Equity Level, Party B shall pay an amount equal to:
(Forward Price - Final Equity Level) x Settlement
Shares.
If the Forward Price is less than the Final Equity
Level, Party A shall pay an amount to equal to:
(Final Equity Level - Forward Price) x Settlement
Shares.
Settlement Shares: With respect to any Settlement Date, a number of
Shares, not to exceed the Base Amount, designated as
such by Party A in the related Settlement Notice;
provided that on the Maturity Date the number of
Settlement Shares shall be equal to the Base Amount.
Settlement Amount: For any Settlement Date, an amount in cash equal to
the product of the Forward Price on such Settlement
Date and the number of Settlement Shares for such
Settlement Date.
5
Final Equity Level: The average execution price paid by Party B to
purchase a number of Shares equal to the Settlement
Shares during the period after Party B has received
notice of the election of Cash Settlement by Party A
and prior to the Settlement Date. The average
execution price shall include any fees or commissions
paid by Party B in connection with purchases of the
Shares.
Settlement Currency: USD.
Failure to Deliver: Applicable.
Adjustments:
Method of Adjustment: Calculation Agent Adjustment.
Extraordinary Events:
Consequences of Merger Events:
(a) Share-for-Share: Alternative Obligation on the Business Day following the
Merger Event with mutually agreed upon commercially reasonable adjustments
to the terms to preserve the economics of the transaction as originally
bargained for pursuant to the terms stated herein, provided that prior to
the Merger Event Party B shall be permitted to elect a Settlement Date with
Physical Settlement within three (3) Business Days preceding the day such
Merger Event is scheduled to occur.
(b) Share-for-Other: Party B shall be permitted to elect a Settlement Date with
Physical Settlement within three (3) Business Days preceding the day such
Merger Event is scheduled to occur.
(c) Share-for-Combined: In respect of any Share-for-Combined Merger Event, as
soon as practicable but not to exceed five (5) Business Days prior to the
date the Merger Event is scheduled to occur, the parties shall mutually
agree upon appropriate adjustments to the terms of the transaction and, if
the parties are unable to so agree, Party B shall be permitted to elect a
Settlement Date with Physical Settlement within three (3) Business Days
preceding the day such Merger Event is scheduled to occur.
If as a result of a Merger Event Party A would receive securities that would be
subject to resale restrictions pursuant to Rule 144 or Rule 145 under the
Securities Act of 1933, as amended, then Party A may elect a Settlement Date
with Physical Settlement within three (3) Business Days preceding the day such
Merger Event is scheduled to occur (regardless whether such Settlement Date
occurs within six months of the Effective Date).
Nationalization or Insolvency: Negotiated Close-out
Account Details:
Payments to Party A: To be advised under separate
cover or telephone confirmed prior to each
Payment Date.
6
Payments to Party B: To be advised under separate cover or
telephone confirmed prior to each Payment
Date.
Delivery of Shares to Party B: To be advised.
Other Provisions:
Conditions to Effectiveness:
The effectiveness of this Confirmation on the Effective Date shall
be subject to (i) the condition that the representations and
warranties of the Issuer and Party A contained in the Underwriting
Agreement dated the date hereof among the Issuer, Party A, Party
B, and Merrill Lynch, Pierce, Fenner & Smith Incorporated and the
other underwriters named therein (the "Underwriting Agreement")
and any certificate delivered pursuant thereto by the Issuer or
Party A be true and correct on the Effective Date as if made as of
the Effective Date, (ii) the condition that the Issuer and Party A
have each performed all of the obligations required to be
performed by it under the Underwriting Agreement on or prior to
the Effective Date and (iii) the satisfaction of all of the
conditions set forth in Section 6 of the Underwriting Agreement.
Covenant of Party A:
Party A agrees to comply with its obligations under the terms of
the Securities Loan Agreement, as mutually agreed upon with
Borrower thereunder, it being acknowledged that Party A's
obligation to return Collateral to Borrower under the Securities
Loan Agreement is expressly conditioned upon Borrower tendering
delivery of the Shares borrowed thereunder or otherwise satisfying
such delivery as described hereunder.
The parties acknowledge and agree that any Shares delivered by
Party A to Party B on any Settlement Date and returned by Party B
to securities lenders from whom Party B borrowed Shares in
connection with hedging its exposure to the Transaction will be
freely saleable without further registration or other restrictions
under the Securities Act of 1933, as amended, in the hands of
those securities lenders provided that they are not affiliates of
the Issuer. Accordingly, Party A agrees that the Settlement Shares
that it delivers to Party B on each Settlement Date will not bear
a restrictive legend and that such Settlement Shares will be
deposited in, and the delivery thereof shall be effected through
the facilities of, the Clearance System.
Acceleration Events:
Notwithstanding any other provision hereof, Party B shall have the
right to designate any Exchange Business Day to be a Settlement
Date with Physical Settlement applicable on at least two Exchange
Business Days' notice, and to
7
select the number of Settlement Shares for such Settlement Date,
if in the judgment of the Calculation Agent, Party B is, on the
date of such designation, unable to hedge Party B's exposure to
the Transaction because of the lack of sufficient Shares being
made available for Share borrowing at a daily rebate rate received
by Party B, net of the cost to Party B of borrowing the Shares, of
at least (i) the rate displayed on the page Feds Open - Index [GO]
on the BLOOMBERG Professional Service, minus 20 basis points,
divided by (ii) 360.
Notwithstanding any other provision hereof, if the Issuer reduces
the number of outstanding Shares such that any of the Shares
subject to delivery to Party B pursuant to this Transaction would
be treated as "Excess Shares" under the articles of incorporation
of the Issuer, Party B shall have the right to designate any
Exchange Business Day to be a Settlement Date with Physical
Settlement applicable on at least two Exchange Business Days'
notice with respect of a number of Settlement Shares necessary to
avoid any of the Shares being treated as such "Excess Shares".
Assignment:
Party B may assign or transfer any of its rights or duties
hereunder to (i) any affiliate of Party B provided that there is a
guarantee by ML&Co. of such affiliate's obligations similar to the
guarantee provided in the Agreement by ML&Co., provided, that
Party B may not make any such assignment if, immediately after
giving effect to the proposed assignment, there would be an Event
of Default or Potential Event of Default of Party B or such
proposed assignee; or (ii) to the extent necessary to avoid any of
the Shares subject to delivery to Party B pursuant to this
Transaction being treated as "Excess Shares" under the articles of
incorporation of the Issuer, any entity not affiliated with Party
B with a credit rating of AA- or above by a nationally recognized
statistical rating organization (as defined in the Securities
Exchange Act of 1934) with the consent of Party A which consent
will not be unreasonably withheld.
Matters relating to Agent:
(a) As a broker-dealer registered with the U.S. Securities and
Exchange Commission, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, in its capacity as Agent, will be responsible
for (i) effecting the Transaction, (ii) issuing all
required confirmations and statements to Party A and Party
B and (iii) maintaining books and records relating to the
Transaction.
(b) Merrill Lynch, Pierce, Fenner & Smith Incorporated shall
act as "agent" for Party A and Party B within the meaning
of Rule 15a-6 under the Securities Exchange Act of 1934 in
connection with the Transaction.
(c) The Agent, in its capacity as such, shall have no
responsibility or liability (including, without limitation,
by way of guarantee, endorsement or otherwise) to Party A
or Party B or otherwise in respect of the Transaction,
8
including, without limitation, in respect of the failure of
Party A or Party B to pay or perform under this
Confirmation, except for its gross negligence or wilful
misconduct in performing its duties as Agent hereunder.
(d) The Agent will be Party B's agent for service of process
for the purpose of Section 13(c) of the Agreement.
The Agreement is further supplemented by the following provisions:
Termination Provisions:
If an Early Termination Date occurs other than as a result of
Illegality, this Transaction shall not be included in calculating
any amounts payable under Section 6(e) of the Agreement, but
rather such Early Termination Date shall be considered the
Settlement Date (regardless of whether such Early Termination Date
occurs within six months after the Effective Date) for the Base
Amount of Shares with Physical Settlement applicable.
Miscellaneous:
(a) Addresses for Notices. For the purpose of Section 12(a):
Address for notices or communications to Party A:
Address: c/o GE Capital Real Estate
292 Long Ridge Road
Stamford, Connecticut 06927
Attention: Legal Operation/Security Capital
Facsimile No.: (203) 357-6768
Address for notices or communications to Party B:
Address: c/o Merrill Lynch, Pierce, Fenner &
Smith Incorporated
Four World Financial Center
North Tower, 5th Floor
New York, NY 10080
Attention: Equity-Linked Capital Markets
Telephone No.: (212) 449-6763
Facsimile No.: (212) 738-1069
(b) Waiver of Right to Trial by Jury. Each party waives, to the
fullest extent permitted by applicable law, any right it
may have to a trial by jury in respect of any suit, action
or proceeding relating to this Confirmation or any Credit
Support Document. Each party (i) certifies that no
representative, agent or attorney of the other party has
represented, expressly or otherwise, that such other party
would not, in the event of such a suit action or
proceeding, seek to enforce the foregoing waiver and (ii)
acknowledges that it and the other party
9
have been induced to enter into this Confirmation by, among
other things, the mutual waivers and certifications in this
Section.
Relating to Party B: Party B is regulated by The Securities and Futures
Authority Limited and has entered into this
Transaction as principal.
Governing Law: The laws of the State of New York (without reference
to choice of law doctrine).
Representations, Party A represents and warrants to, and agrees with,
Warranties and Party B as follows:
Covenants of
Party A:
(a) Party A (i) has such knowledge and experience
in financial and business affairs as to be
capable of evaluating the merits and risks of
entering into the Transaction; and (ii) has
consulted with its own legal, financial,
accounting and tax advisors in connection
with the Transaction.
(b) None of Party A or any of its affiliates is
in possession of any material non-public
information regarding the Issuer.
(c) Party A shall comply with the reporting and
other requirements of Section 13 and Section
16 of the Securities Exchange Act of 1934
relating to this Transaction.
(d) Party A covenants that it will send to Party
B via facsimile a copy of each filing under
Section 13 or 16 of the Exchange Act relating
to this Transaction concurrently with filing
or transmission for filing, as the case may
be, of such form to or with the Securities
and Exchange Commission (the "SEC").
(e) Party A is not and has not been the subject
of any civil proceeding of a judicial or
administrative body of competent jurisdiction
that could reasonably be expected to impair
Party A's ability to perform its obligations
hereunder.
(f) Neither the consummation of any of the
transactions herein contemplated by Party A
nor the fulfillment of the terms hereof by
Party A will conflict with, result in a
breach or violation of, or constitute a
default under (i) any law or the charter or
by-laws of Party A or (ii) the terms of any
indenture or other agreement or instrument to
which Party A or any of its subsidiaries is a
party or bound, or any judgment, order or
decree applicable to Party A or any of its
subsidiaries of any court, regulatory body,
administrative agency, governmental body or
arbitrator
10
having jurisdiction over Party A or any of
its subsidiaries other than (with respect to
this clause (ii)) any such conflicts,
breaches, violations or defaults that would
not reasonably be likely to have a material
adverse effect on the ability of Party A to
consummate the transactions herein
contemplated or to fulfill the terms hereof.
(g) Party A will immediately notify Party B upon
obtaining knowledge of the occurrence of any
event that would constitute an Event of
Default, a Potential Event of Default or a
Potential Adjustment Event.
(h) Party A is not as of the Trade Date, and will
not as of the Effective Date after giving
effect to the transactions contemplated
hereby, be insolvent.
(i) Party A is an "eligible contract participant"
as such term is defined in Section 1(a)(12)
of the Commodity Exchange Act, as amended.
(j) The parties hereto intend as follows:
(i) This Transaction to constitute a
"securities contract" as defined in
Section 741(7) of the Bankruptcy Code,
qualifying for the protection under
Section 555 of the Bankruptcy Code.
(ii) A party's right to liquidate the
forward contract as contemplated by
the Transaction and to exercise any
other remedies upon the occurrence of
any Event of Default under the
Agreement with respect to the other
party to constitute a "contractual
right" as defined in the Bankruptcy
Code.
(iii) Any cash, securities or other property
provided as performance assurance,
credit, support or collateral with
respect to this Transaction to
constitute "margin payments" as
defined in the Bankruptcy Code.
(iv) All payments for, under or in
connection with this Transaction, all
payments for the Shares and the
transfer of such Shares to constitute
"settlement payments" as defined in
the Bankruptcy Code.
(v) "Bankruptcy Code" means Title 11 of
the United States Bankruptcy Code.
11
Please confirm that the foregoing correctly sets forth the terms of our
agreement by signing and returning this Confirmation to the Agent by facsimile
transmission to the Attention of: Peter Barna (Telecopier No. (212) 738-1064).
Confirmed as of the date first above written:
Merrill Lynch International
By: /s/ A. SCOTT WARD
-----------------------------------------
Name: A. Scott Ward
Title: Authorized Signatory
Confirmed as of the date first above written:
Security Capital Shopping Mall Business Trust
By: /s/ PHILIP A. MINTZ
-----------------------------------------
Name: Philip A. Mintz
Title: Vice President
Acknowledged and agreed as to matters relating to the Agent:
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
solely in its capacity as Agent hereunder
By: /s/ MARCELLA VULLO
-----------------------------------------
Name: Marcella Vullo
Title: Authorized Signatory
12
EXHIBIT 38
[Graphic Omitted]
FORWARD SHARE TRANSACTION
DATE: JUNE 18, 2003
TO: SECURITY CAPITAL SHOPPING MALL BUSINESS TRUST
ADDRESS: C/O GE CAPITAL REAL ESTATE
292 LONG RIDGE ROAD
STAMFORD, CT 06927
ATTENTION: PHILIP MINTZ
FACSIMILE: (203) 585-0179
FROM: WACHOVIA SECURITIES, LLC
AS AGENT OF WACHOVIA BANK, NATIONAL ASSOCIATION (THE "AGENT")
WACHOVIA REFERENCE NUMBER: 484996
The purpose of this letter agreement (this "Confirmation") is to
confirm the terms and conditions of the Transaction entered into between
Wachovia Bank, National Association ("Wachovia" or "Party B") and Security
Capital Shopping Mall Business Trust ("Party A") (collectively with Wachovia,
the "parties") on the Trade Date as specified below (the "Transaction"). This
Confirmation constitutes a "Confirmation" as referred to in the Master Agreement
specified below.
The definitions and provisions contained in the 2000 ISDA Definitions
(including the June 2000 Version Annex thereto) (the "2000 Definitions") and the
1996 ISDA Equity Derivatives Definitions (the "Equity Definitions", and together
with the 2000 Definitions, the "Definitions"), in each case as published by the
International Swaps and Derivatives Association, Inc. ("ISDA") are incorporated
into, and subject to, this Confirmation. References herein to "Transaction"
shall be deemed references to "Swap Transaction" for purposes of the 2000
Definitions. In the event of any inconsistency between the 2000 Definitions and
the Equity Definitions, the Equity Definitions will govern. In the event of any
inconsistency between either set of Definitions and this Confirmation, this
Confirmation will prevail.
This Confirmation supplements, forms part of, and is subject to, the
ISDA Master Agreement between the parties, dated as of June 18, 2003 as may be
amended and supplemented from time to time (the "Master Agreement"). All
provisions contained in or incorporated by reference into the Master Agreement
will govern this Confirmation except as expressly modified below.
1. The terms of the particular Transaction to which this Confirmation relates
are as follows:
GENERAL TERMS:
Trade Date: June 18, 2003.
Effective Date: June 24, 2003, or on such later date as designed pursuant
to the terms of the Underwriting Agreement dated the date
hereof among the Issuer, Party A, Party B, and Merrill
Lynch, Pierce, Fenner & Smith Incorporated and the other
underwriters named therein (the "UNDERWRITING
AGREEMENT").
Base Amount: Initially, 3,906,666 Shares. On each Settlement Date, the
Base Amount shall be reduced by the number of Settlement
Shares for such Settlement Date.
Maturity Date: June 21, 2004.
Forward Price: On the Effective Date, the Initial Forward Price, and on
any other day, (i) the Forward Price on the immediately
preceding calendar day multiplied by the sum of (A) 1
PLUS (B) the Daily Rate for such day, MINUS (ii) the sum
of any cash dividend paid on such day (other than any
cash dividend for which the ex-dividend date occurred
prior to the Effective Date); PROVIDED that if on any
Settlement Date an ex-dividend date for a cash dividend
has occurred, but such dividend has not yet been paid,
then, solely for the purpose of calculating the
Settlement Amount for such Settlement Date, the present
value (as determined by the Calculation Agent) of such
dividend shall be deducted from the Forward Price on such
Settlement Date.
Initial Forward Price: USD 31.1355 per Share.
Daily Rate: For any day, (i)(A) "USD-Federal Funds" MINUS (B) the
Spread DIVIDED by (ii) 360.
Where, "USD-Federal Funds" means the rate as determined
by the Calculation Agent as of 9:00 a.m. (New York City
time) on such day and reported on the page FEDSOPEN
[Index] [GO] on the BLOOMBERG Professional Service or any
successor page available on Bloomberg for determining
such rate. In the event such rate is not available, the
Federal Funds rate shall be determined by the Calculation
Agent in good faith in a commercially reasonable manner.
Spread: 0.20%.
Shares: Common Stock, $0.01 par value per share, of Regency
Centers Corporation (the "ISSUER") (Exchange identifier:
"REG"). Exchange: New York Stock Exchange
Related Exchange(s): The principal exchanges(s) for options contracts or
futures contracts, if any, with respect to the Shares.
Clearance System: DTC
Calculation Agent: Wachovia.
The Calculation Agent shall promptly notify the parties
of its calculations and determinations in respect of the
Transaction. The calculations and determinations of the
Calculation Agent shall be final absent manifest error.
The Calculation Agent shall promptly correct any
instances of manifest error following any notice of such
error from a party. If Party A in good faith claims that
a calculation or determination is erroneous, both parties
shall promptly negotiate in good faith to resolve the
dispute, failing which Party A shall promptly appoint two
independent leading market dealers and Party B shall
promptly
appoint two independent leading market dealers to make
the relevant calculation or determination. In the case of
a calculation, such calculation shall be the arithmetic
mean of the calculations by the appointed dealers without
regard to the calculations that have the highest and
lowest values (if there are four different calculations),
and in the case of a determination, such determination
shall be the determination agreed upon by at least three
of the four dealers; provided that, if fewer than four
dealers provide a calculation or determination or if
three dealers do not agree on a determination, then Party
A and Party B shall agree on the appointment of such
number of additional dealers such that the Calculation
Agent receives four calculations or such that three
dealers agree on a determination as the case may be.
SETTLEMENT TERMS:
Settlement Date: Any Exchange Business Day following the Effective Date
and up to and including the Maturity Date, as designated
by Party A in a written notice (a "SETTLEMENT NOTICE")
delivered to Party B at least ten (10) Exchange Business
Days, in the case of Physical Settlement, and forty-five
(45) Exchange Business Days, in the case of Cash
Settlement, prior to such Settlement Date, unless
different periods for notice are mutually agreed to by
Party A and Party B; PROVIDED that the Maturity Date
shall be a Settlement Date if on such date the Base
Amount is greater than zero.
Settlement: Settlement of this Transaction shall be Physical
Settlement as specified below unless Party A informs
Party B in writing no fewer than forty-five (45) Exchange
Business Days prior to the scheduled Settlement Date that
Party A has elected Cash Settlement at Party A's option,
unless a different period for notice is mutually agreed
to by Party A and Party B.
In the event that the Borrower (Party B) under that
certain Securities Loan Agreement dated as of June 18,
2003 among Party B and UBS Securities LLC, as Agent, and
supplemented by the Supplemental Securities Loan
Agreement, among Party A, Party B, and UBS Securities
LLC, as Agent, dated as of June 18, 2003 (collectively,
the "Securities Loan Agreement") does not deliver Shares
to Party A under that Securities Loan Agreement, then
Physical Settlement shall apply and Party A shall have
the right to apply its right to receive Shares under the
Securities Loan Agreement, in whole or in part, against
its delivery obligation under this Transaction, in whole
or in part, and to assign to Party B, Party A's interest
in the "Collateral" under the Stock Loan Agreement with
respect to such Shares in satisfaction of Party B's
corresponding payment obligation under this Transaction.
In the event that, upon the tender of Shares by Party B
as Borrower under the Securities Loan Agreement, Party A
as Lender fails to return "Collateral" as defined under
the Securities Loan Agreement as required thereunder,
Party B shall have the right to satisfy its payment
obligation under this
Transaction, in whole or in part, by directing Party A as
Lender to retain an amount of the "Collateral" under the
Securities Loan Agreement equal to the amount of Party
B's payment obligation hereunder that is to be so
satisfied, in which event instead of delivering the
tendered Shares to the Lender under the Securities Loan
Agreement, Party B, as Borrower, shall retain such Shares
and the obligation of Party B to deliver the Shares
hereunder shall be satisfied.
In the event that Party B fails to make any payment to
Party A hereunder, Party A as Lender may retain an amount
of "Collateral" under the Securities Loan Agreement equal
to such payment and apply it in satisfaction of Party B's
payment obligation hereunder, in whole or in part as the
case may be, and in conjunction therewith shall assign to
Party B its right to receive the corresponding Shares in
repayment of the Loan evidenced by the Securities Loan
Agreement.
If Physical Settlement is elected, either Party A or, to
the extent, but only to the extent, that Party B
concurrently tenders payment to Party A as required
hereunder, Party B may direct Party A to apply any right
of Party A to receive delivery of Shares from Borrower
under the Securities Loan Agreement to satisfy the
delivery obligation of Party A hereunder with respect to
the number of Shares that Party A as Lender is then
entitled to receive from Party B as Borrower. In such
event, Party A shall return the corresponding
"Collateral" under the Securities Loan Agreement to
Borrower upon payment by Party B with respect to this
Transaction.
Physical Settlement: Except as otherwise provided above, on any Settlement
Date, Party A shall deliver to Party B or its designee a
number of Shares equal to the Settlement Shares for such
Settlement Date, and Party B shall deliver to Party A, by
wire transfer of immediately available funds to an
account designated by Party A, an amount in cash equal to
the Settlement Amount for such Settlement Date, on a
delivery versus payment basis. The Settlement Shares
delivered in accordance with the terms of this
Transaction will have been held by Party A as of the
Trade Date or will have been acquired by Party A from
holders of Shares and not from the Issuer and will not be
subject to any preemptive or similar rights and will be
free and clear of liens and other encumbrances.
Cash Settlement: On any Settlement Date, the party indicated below shall
make the specified cash payment by wire transfer of
immediately available funds to the designated account:
(A) If the Forward Price equals or exceeds the Final
Equity Level, Party B shall pay an amount equal
to:
(Forward Price - Final Equity Level) x Settlement
Shares
(B) If the Forward Price is less than the Final
Equity Level, Party A shall pay an amount to
equal to:
(Final Equity Level - Forward Price) x Settlement
Shares
Settlement Shares: With respect to any Settlement Date, a number of Shares,
not to exceed the Base Amount, designated as such by
Party A in the related Settlement Notice; PROVIDED that
on the Maturity Date the number of Settlement Shares
shall be equal to the Base Amount.
Settlement Amount: For any Settlement Date, an amount in cash equal to the
product of the Forward Price on such Settlement Date and
the number of Settlement Shares for such Settlement Date.
Final Equity Level: The average execution price paid by Party B or its
designee to purchase a number of Shares equal to the
Settlement Shares during the period after Party B has
received notice of the election of Cash Settlement by
Party A and prior to the Settlement Date. The average
execution price shall include any fees or commissions
paid by Party B or its designee in connection with
purchases of the Shares.
Settlement Currency: USD.
Failure to Deliver: Applicable.
ADJUSTMENTS:
Method of
Adjustment: Calculation Agent Adjustment.
EXTRAORDINARY EVENTS:
Consequences of Merger Events:
(a) Share-for-Share: Alternative Obligation on the Business Day following
the Merger Event with mutually agreed upon commercially reasonable
adjustments to the terms to preserve the economics of the transaction
as originally bargained for pursuant to the terms stated herein;
PROVIDED that prior to the Merger Event Party B shall be permitted to
elect a Settlement Date with Physical Settlement within one (1)
Business Day preceding the day such Merger Event occurs.
(b) Share-for-Other: Party B shall be permitted to elect a Settlement
Date with Physical Settlement within one (1) Business Day preceding
the day such Merger Event occurs.
(c) Share-for-Combined: In respect of any Share-for-Combined Merger
Event, as soon as practicable but not to exceed three (3) Business
Days prior to the occurrence of the Merger Event, the parties shall
mutually agree upon appropriate adjustments to the terms of the
transaction and, if the parties are unable to so agree, Party B shall
be permitted to elect a Settlement Date with Physical Settlement
within one (1) Business Day preceding the day such Merger Event
occurs.
If, as a result of a Merger Event, Party A would receive securities that
would be subject to resale restrictions pursuant to Rule 144 or Rule 145
under the Securities Act of 1933, as amended, then Party A may elect
Physical Settlement and designate a Settlement Date which shall occur
within three (3) Business Days preceding the day such Merger Event is
scheduled to occur (regardless whether such Settlement Date occurs within
six months of the Effective Date).
Nationalization or Insolvency: Negotiated Close-out
Termination Currency: USD
Account Details:
Payments to Party A: To be advised under separate
cover or telephone confirmed prior to
each Payment Date.
Payments to Party B: To be advised under separate cover or
telephone confirmed prior to each Payment
Date.
Delivery of Shares to Party B: To be advised.
2. Other Provisions:
CONDITIONS TO EFFECTIVENESS:
The effectiveness of this Confirmation on the Effective Date shall be subject to
(i) the condition that the representations and warranties of the Issuer and
Party A contained in the Underwriting Agreement and any certificate delivered
pursuant thereto by the Issuer or Party A be true and correct on the Effective
Date as if made as of the Effective Date, (ii) the condition that the Issuer and
Party A have each performed all of the obligations required to be performed by
it under the Underwriting Agreement on or prior to the Effective Date and (iii)
the satisfaction of all of the conditions set forth in Section 6 of the
Underwriting Agreement.
COVENANT OF PARTY A:
Party A agrees to comply with its obligations under the terms of the Securities
Loan Agreement, as mutually agreed upon with Borrower thereunder, it being
acknowledged that Party A's obligation to return Collateral to Borrower under
the Securities Loan Agreement is expressly conditioned upon Borrower tendering
delivery of the Shares borrowed thereunder.
The parties acknowledge and agree that any Shares delivered by Party A to Party
B on any Settlement Date and returned by Party B to securities lenders from whom
Party B borrowed Shares in connection with hedging its exposure to the
Transaction will be freely saleable without further registration or other
restrictions under the Securities Act of 1933, as amended, in the hands of those
securities lenders, PROVIDED that they are not affiliates of the Issuer.
Accordingly, Party A agrees that the Settlement Shares that it delivers to Party
B on each Settlement Date will not bear a restrictive legend and that such
Settlement Shares will be deposited in, and the delivery thereof shall be
effected through the facilities of, the Clearance System.
EARLY SETTLEMENT EVENT:
Notwithstanding any other provision hereof, Party B shall have the right to
designate any Exchange Business Day to be a Settlement Date with Physical
Settlement applicable on at least two Exchange Business Days' notice, and to
select the number of Settlement Shares for such Settlement Date, if in the
judgment of the Calculation Agent, Party B is, on the date of such designation,
unable to hedge Party B's exposure to the Transaction because of the lack of
sufficient Shares being made available for Share borrowing from lenders at a
daily rebate rate received by Party B, net of the cost to Party B of borrowing
the Shares, of at least (i) USD-Federal Funds (as defined herein), minus 20
basis points, divided by (ii) 360.
Notwithstanding any other provision hereof, if the Issuer reduces the number of
outstanding Shares such that any of the Shares subject to delivery to Party B
pursuant to this Transaction would be treated as "Excess Shares" under the
articles of incorporation of the Issuer, Party B shall have the right to
designate any Exchange Business Day to be a Settlement Date with Physical
Settlement applicable on at least two Exchange Business Days' notice with
respect to a number of Settlement Shares necessary to avoid any of the Shares
being treated as such "Excess Shares".
ASSIGNMENT:
Party B may assign or transfer any of its rights or duties hereunder or delegate
its obligations hereunder to (i) any affiliate of Party B, provided, that Party
B may not make any such assignment if, immediately after giving effect to the
proposed assignment, there would be an Event of Default or Potential Event of
Default of Party B or such proposed assignee; or (ii) to the extent necessary to
avoid any of the Shares subject to delivery to Party B pursuant to this
Transaction being treated as "Excess Shares" under the articles of incorporation
of the Issuer, any entity not affiliated with Party B with a credit rating at
the time of such assignment of AA- or above by a nationally recognized
statistical rating organization (as defined in the Securities Exchange Act of
1934) with the consent of Party A which consent will not be unreasonably
withheld. This Confirmation is not intended and shall not be construed to create
any rights in any Person other than Party A, Party B, an affiliate of Party B
designated hereunder and their respective successors and assigns and no other
Person shall assert any rights as third party beneficiary hereunder. Whenever
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party.
3. The Agreement is further supplemented by the following provisions:
CREDIT SUPPORT PROVISIONS:
Credit Support Documents: Guaranty dated as of June 18, 2003 by General
Electric Capital Corporation in favor of Party B.
Credit Support Provider: General Electric Capital Corporation
TERMINATION PROVISIONS:
(a) The "Automatic Early Termination" provisions of Section 6(a) will
not apply to Party A and Party B.
(b) For the purpose of Section 6(e), Second Method and Loss will apply;
PROVIDED, HOWEVER, that if an Early Termination Date occurs, this Transaction
shall not be included in calculating any amounts payable under Section 6(e) of
the Agreement, but rather such Early Termination Date shall be considered the
Settlement Date (regardless of whether such Early Termination Date occurs within
six months after the Effective Date) for the Base Amount with Physical
Settlement applicable.
MISCELLANEOUS:
(a) Addresses for Notices. For the purpose of Section 12(a):
Address for notices or communications to Party A:
Security Capital Shopping Mall Business Trust
Address: c/o GE Capital Real Estate
292 Long Ridge Road
Stamford, CT 06927
Attention: Philip Mintz
Facsimile No.: 203-585-0179
Copies to:
GE Capital Real Estate
292 Long Ridge Road
Stamford, CT 06927
Attention: Legal Operation/Security Capital
Telecopier: 203-357-6768
and
General Electric Capital Corporation
260 Long Ridge Road
Stamford, CT 06927
Attention: Senior Vice President - Corporate
Treasury and Global Funding Operation
Telecopier: 203-357-4975
Address for notices or communications to Party B:
Address: Wachovia Bank, National Association
c/o Wachovia Securities, LLC
12 East 49th Street, 45th Floor
New York, NY 10017
Attention: Equity Linked Products Division - Documentation
Telephone No.: 212-909-0951
Facsimile No.: 212-891-5042
(b) WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING RELATING TO THIS
CONFIRMATION OR ANY CREDIT SUPPORT DOCUMENT. Each party (i) certifies
that no representative, agent or attorney of the other party has
represented, expressly or otherwise, that such other party would not,
in the event of such a suit action or proceeding, seek to enforce the
foregoing waiver and (ii) acknowledges that it and the other party
have been induced to enter into this Confirmation by, among other
things, the mutual waivers and certifications in this Section.
Governing Law: The laws of the State of New York (without
reference to choice of law doctrine).
Representations of Party A: Party A represents and warrants to, and agrees
with, Party B as follows:
(a) Party A (i) has such knowledge and
experience in financial and business affairs
as to be capable of evaluating the merits and
risks of entering into the Transaction; and
(ii) has consulted with its own legal,
financial, accounting and tax advisors in
connection with the Transaction.
(b) None of Party A or any of its affiliates
is in possession of any material non-public
information regarding the Issuer.
(c) Party A shall comply with the reporting
and other requirements of Section 13 and
Section 16 of the Securities Exchange Act of
1934 relating to this Transaction.
(d) Party A covenants that it will send to
Party B via facsimile a copy of each filing
under Section 13 or 16 of the Exchange Act
relating to this Transaction concurrently with
filing or transmission for filing, as the case
may be, of such form to or with the Securities
and Exchange Commission (the "SEC").
(e) Party A is not and has not been the
subject of any civil proceeding of a judicial
or administrative body of competent
jurisdiction that could reasonably be expected
to impair Party
A's ability to perform its obligations
hereunder.
(f) Neither the consummation of any of the
transactions herein contemplated by Party A
nor the fulfillment of the terms hereof by
Party A will conflict with, result in a breach
or violation of, or constitute a default under
(i) any law or the charter or by-laws of Party
A or (ii) the terms of any indenture or other
agreement or instrument to which Party A or
any of its subsidiaries is a party or bound,
or any judgment, order or decree applicable to
Party A or any of its subsidiaries of any
court, regulatory body, administrative agency,
governmental body or arbitrator having
jurisdiction over Party A or any of its
subsidiaries other than (with respect to this
clause (ii)) any such conflicts, breaches,
violations or defaults that would not
reasonably be likely to have a material
adverse effect on the ability of Party A to
consummate the transactions herein
contemplated or to fulfill the terms hereof.
(g) Party A will immediately notify Party B
upon obtaining knowledge of the occurrence of
any event that would constitute an Event of
Default, a Potential Event of Default or a
Potential Adjustment Event.
(h) Party A is an "eligible contract
participant" as such term is defined in
Section 1(a)(12) of the Commodity Exchange
Act, as amended.
(i) Party A is not as of the Trade Date, and
will not as of the Effective Date after giving
effect to the transactions contemplated
hereby, be insolvent.
(j) The parties hereto intend that (a) Party B
be a financial institution within the meaning
of Section 101(22) of Title 11 of the United
States Code (the "BANKRUPTCY Code"), (b) the
Agreement and this Confirmation be a
securities contract, as such term is defined
in Section 741(7) of the Bankruptcy Code, (c)
each and every transfer of funds, securities
and other property under the Agreement or this
Confirmation be a settlement payment or a
margin payment, as such terms are used in
Sections 362(b)(6) and 546(e) of the
Bankruptcy Code, (d) the rights given to Party
B hereunder upon an Event of Default
constitute the rights to cause the liquidation
of a securities contract and to set off mutual
debts and claims in connection with a
securities contract, as such terms are used in
Sections 555 and 362(b)(6) of the Bankruptcy
Code, and (e) any or all obligations that
either party has with respect to this
Transaction or the Agreement constitute
property held by or due from such party to
margin, guaranty or settle obligations of the
other party with respect to Transactions under
this Confirmation or any other agreement
between such parties.
(k) Non-Confidentiality of and Non-Reliance on
Tax Aspects. Each of Party A, Party B and
their respective employees, representative and
other agents (including legal counsel, if any)
authorizes the other party and its employees,
representative and agents to disclose to any
and all persons, without limitation, the
tax aspects of any Transaction and the
structure of any Transaction insofar as it
relates to the tax aspects thereof, and all
materials of any kind provided to the other
party related to such tax aspects and
structure, effective without limitation from
the commencement of discussions. In addition,
each of Party A and Party B agree that it is
not relying on the other party as to the tax
aspects, tax structure or tax consequences of
any Transaction, and each party will have
relied solely upon its own independent tax
advisors for advice on any such tax aspects,
tax structure or tax consequences.
TERMS RELATING TO WACHOVIA'S AGENT:
(a) The Agent is registered as a broker-dealer with the U.S. Securities and
Exchange Commission and the National Association of Securities Dealers, is
acting hereunder for and on behalf of Wachovia solely in its capacity as agent
for Wachovia pursuant to instructions from Wachovia, and is not and will not be
acting as Party A's agent, broker, advisor or fiduciary in any respect under or
in connection with this Transaction.
(b) In addition to acting as Wachovia's agent in executing this Transaction, the
Agent is authorized from time to time to give written payment and/or delivery
instructions to Party A directing it to make its payments and/or deliveries
under this Transaction to an account of the Agent for remittance to Wachovia (or
its designee), and for that purpose any such payment or delivery by Party A to
the Agent shall be treated as a payment or delivery to Wachovia.
(c) Except as otherwise provided herein, any and all notices, demands, or
communications of any kind transmitted in writing by either Wachovia or Party A
under or in connection with this Transaction will be transmitted exclusively by
such party to the other party through the Agent at the following address:
Wachovia Securities, LLC
201 South College Street, 23rd Floor
Charlotte, NC 28288-0601
Facsimile No.: (704) 383-8425
Telephone No.: (704) 715-8086
Attention: Equity Derivatives
(d) The Agent shall have no responsibility or liability to Wachovia or Party A
for or arising from (i) any failure by either Wachovia or Party A to perform any
of their respective obligations under or in connection with this Transaction,
(ii) the collection or enforcement of any such obligations, or (iii) the
exercise of any of the rights and remedies of either Wachovia or Party A under
or in connection with this Transaction. Each of Wachovia and Party A agrees to
proceed solely against the other to collect or enforce any such obligations and
the Agent shall have no liability in respect of this Transaction except for its
gross negligence or willful misconduct in performing its duties as the agent of
Wachovia.
(e) Upon written request, the Agent will furnish to Wachovia and Party A the
date and time of the execution of this Transaction and a statement as to the
source and amount of any remuneration received or to be received by the Agent in
connection with this Transaction.
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing a copy of this Confirmation and returning it to us by fax
at (212) 891-5042 (Attention: Cathleen Burke, by telephone contact (212)
909-0951).
Very truly yours,
WACHOVIA SECURITIES, LLC, WACHOVIA BANK, NATIONAL ASSOCIATION
acting solely in its capacity as Agent By: Wachovia Securities, LLC,
of Wachovia Bank, National Association acting solely in its capacity as its Agent
By: /s/ STEVEN GRAY By: /s/ MARY LOUISE GUTTMANN
-------------------------------- -----------------------------------------
Name: Steven Gray Name: Mary Louise Guttmann
Title: Senior Vice President Title: Senior Vice President
Confirmed as of the date first above written:
SECURITY CAPITAL SHOPPING
MALL BUSINESS TRUST
By: /s/ PHILIP A. MINTZ
---------------------------------
Name: Philip A. Mintz
Title: Vice President
EXHIBIT 39
[JPMORGAN LOGO]
JPMorgan Chase Bank, London Branch
P.O. Box 161
60 Victoria Embankment
London EC4Y 0JP, England
June 18, 2003
Security Capital Shopping
Mall Business Trust
c/o GE Capital Real Estate
292 Long Ridge Road
Stamford, CT 06927
RE: SHARE FORWARD TRANSACTION (REF. NO ________)
Dear Sir / Madam:
The purpose of this letter agreement (this "CONFIRMATION") is to confirm
the terms and conditions of the above-referenced transaction entered into
between Security Capital Shopping Mall Business Trust and JPMorgan Chase Bank,
London Branch, on the Trade Date specified below (the "TRANSACTION"). This
Confirmation shall supersede all or any prior written or oral agreements in
relation to the Transaction. This Confirmation constitutes a "CONFIRMATION" as
referred to in the Agreement specified below.
The definitions and provisions contained in the 2000 ISDA Definitions
(the "SWAP DEFINITIONS") and the 1996 ISDA Equity Derivatives Definitions (the
"EQUITY DEFINITIONS" and together with the Swap Definitions, the "DEFINITIONS"),
in each case as published by the International Swaps and Derivatives
Association, Inc., are incorporated into this Confirmation. In the event of any
inconsistency between the Swap Definitions and the Equity Definitions, the
Equity Definitions will govern and in the event of any inconsistency between the
Definitions and this Confirmation, this Confirmation will govern.
This Confirmation supplements, forms part of, and is subject to, the ISDA
Master Agreement and Schedule thereto dated as of June 18, 2003, as amended and
supplemented from time to time (the "AGREEMENT"), between you and us, with the
obligations of Counterparty guaranteed by General Electric Capital Corporation
("GE CAPITAL"). All provisions contained in the Agreement govern this
Confirmation except as expressly modified below.
1. The terms of the particular Transaction to which this Confirmation
relates are as follows:
GENERAL TERMS:
Party A: Security Capital Shopping Mall Business Trust
(hereinafter referred to as "COUNTERPARTY")
Party B: JPMorgan Chase Bank (hereinafter referred to as
"JPMORGAN")
A subsidiary of J.P. Morgan Chase & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 125 London Wall, London, EC2Y 5AJ.
Head office 270 Park Avenue, New York, USA.
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EXHIBIT 39
[JPMORGAN LOGO]
Trade Date: June 18, 2003.
Effective Date: June 24, 2003, or on such later date as designated
pursuant to the terms of the Underwriting Agreement
dated the date hereof among the Issuer, Counterparty,
JPMorgan, and Merrill Lynch, Pierce, Fenner & Smith
Incorporated and the other underwriters named therein
(the "UNDERWRITING AGREEMENT").
Base Amount: Initially, 3,906,667 Shares. On each Settlement Date,
the Base Amount shall be reduced by the number of
Settlement Shares for such Settlement Date.
Maturity Date: June 18, 2004.
Forward Price: On the Effective Date, the Initial Forward Price, and on
any other day, (i) the Forward Price on the immediately
preceding calendar day multiplied by the sum of (A) 1
PLUS (B) the Daily Rate for such day, MINUS (ii) the sum
of any cash dividend paid on such day (other than any
cash dividend for which the ex-dividend date occurred
prior to the Effective Date); PROVIDED that if on any
Settlement Date an ex-dividend date for a cash dividend
has occurred, but such dividend has not yet been paid,
then, solely for the purpose of calculating the
Settlement Amount for such Settlement Date, the present
value (as determined by the Calculation Agent) of such
dividend shall be deducted from the Forward Price on
such Settlement Date.
Initial Forward Price: USD $31.1355 per Share.
Daily Rate: For any day, (i)(A) USD-Federal Funds Rate (as defined
below) minus (B) the Spread, divided by (ii) 360.
"USD-FEDERAL FUNDS RATE" means the rate sate forth for
such day opposite the caption "Federal funds
(effective)", as such rate is displayed on the page
"Feds Open - Index - [GO]" on the BLOOMBERG Professional
Service, or any successor page or such other source for
the US dollar Federal Funds rate designated by Borrower
and Lender (or any successor or replacement page); and
if, by 5:00 p.m., New York City time, on such day, such
rate fort such day does not appear or is not yet
published, the rate for such date will be the rate set
forth in such other recognized electronic source used
for the purpose
A subsidiary of J.P. Morgan Chase & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 125 London Wall, London, EC2Y 5AJ.
Head office 270 Park Avenue, New York, USA.
2
EXHIBIT 39
[JPMORGAN LOGO]
of displaying such rate, for such day opposite the
caption "Federal funds (effective)". If, by 5:00 p.m.,
New York City time, on the day that is one New York City
Banking Day following such day, such rate does not
appear or is not yet published on any other recognized
electronic source, the rate for such day will be the
rate for the first preceding day for which such rate is
set forth on the "Feds Open - Index - [GO]" page on the
BLOOMBERG Professional Service.
Spread: 0.20%.
Shares: Common Stock, $0.01 par value per share, of Regency
Centers Corporation (the "ISSUER") (Exchange identifier:
"REG").
Exchange: New York Stock Exchange
Related Exchange(s): The principal exchanges(s) for options contracts or
futures contracts, if any, with respect to the Shares.
Clearance System: DTC
Calculation Agent: JPMorgan Chase Bank The Calculation Agent shall promptly
notify the parties of its calculations and
determinations in respect of the Transaction. The
calculations and determinations of the Calculation Agent
shall be final absent manifest error. The Calculation
Agent shall promptly correct any instances of manifest
error following any notice of such error from a party.
If Counterparty in good faith claims that a calculation
or determination is erroneous, both parties shall
promptly negotiate in good faith to resolve the dispute,
failing which Counterparty shall promptly appoint two
independent leading market dealers and JPMorgan shall
promptly appoint two independent leading market dealers
to make the relevant calculation or determination. In
the case of a calculation, such calculation shall be the
arithmetic mean of the calculations by the appointed
dealers without regard to the calculations that have the
highest and lowest values (if there are four different
calculations), and in the case of a determination, such
determination shall be the determination agreed upon by
at least three of the four dealers; provided that, if
fewer than four dealers provide a calculation or
determination or if three dealers do not agree on a
determination, then Counterparty and JPMorgan shall
agree on the appointment of such number of
A subsidiary of J.P. Morgan Chase & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 125 London Wall, London, EC2Y 5AJ.
Head office 270 Park Avenue, New York, USA.
3
EXHIBIT 39
[JPMORGAN LOGO]
additional dealers such that the Calculation Agent
receives four calculations or such that three dealers
agree on a determination as the case may be.
SETTLEMENT TERMS:
Settlement Date: Any Exchange Business Day following the Effective Date
and up to and including the Maturity Date, as designated
by Counterparty in a written notice (a "SETTLEMENT
NOTICE") delivered to JPMorgan at least ten (10)
Exchange Business Days, in the case of Physical
Settlement, and forty-five (45) Exchange Business Days,
in the case of Cash Settlement, prior to such Settlement
Date, unless different periods for notice are mutually
agreed to by Counterparty and JPMorgan; PROVIDED that
the Maturity Date shall be a Settlement Date if on such
date the Base Amount is greater than zero.
Settlement: Settlement of this Transaction shall be Physical
Settlement as specified below unless Counterparty
informs JPMorgan in writing no fewer than forty-five
(45) Exchange Business Days prior to the scheduled
Settlement Date that Counterparty has elected Cash
Settlement at Counterparty's option, unless a different
period for notice is mutually agreed to by Counterparty
and JPMorgan. If Physical Settlement is elected, then
(i) Counterparty may elect to satisfy its obligation to
deliver Shares under this Transaction, in whole or in
part, by assigning to JPMorgan its right to receive
delivery of an equal number of Shares (or such lesser
number as may then be subject to a loan) under that
certain Securities Loan Agreement dated as of December
22, 1999 (the "BASE SECURITIES LOAN AGREEMENT"), among
PaineWebber Incorporated and J.P. Morgan Securities Inc.
("JPMSI"), as amended to add JPMorgan as a party
pursuant to a letter agreement dated as of June 18,
2003, among UBS Securities LLC ("UBS"), Agent and
JPMorgan, as amended from time to time, and as further
supplemented by the Supplemental Securities Loan
Agreement dated as of June 18, 2003 (the "SUPPLEMENTAL
SECURITIES LOAN AGREEMENT", and together with the Base
Securities Loan Agreement, the "SECURITIES LOAN
AGREEMENT"), among JPMorgan, Counterparty and UBS and
(ii) JPMorgan may elect to satisfy its payment
obligation under this Transaction, in whole or in part,
by assigning to
A subsidiary of J.P. Morgan Chase & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 125 London Wall, London, EC2Y 5AJ.
Head office 270 Park Avenue, New York, USA.
4
EXHIBIT 39
[JPMORGAN LOGO]
Counterparty its right to the return of Collateral (as
such term is defined in the Securities Loan Agreement)
under the Securities Loan Agreement in amount equal to
the amount of such payment obligation (or such amount as
may then be held as Collateral under the Securities Loan
Agreement). If (a) Counterparty or JPMorgan fails to
perform its delivery or payment obligations, as the case
may be, under this Transaction on the Settlement Date or
(b) Counterparty or JPMorgan fails to perform its
obligation to return the Collateral or to deliver the
Loaned Shares (as such term is defined in the Securities
Lending Agreement), as the case may be, under the
Securities Lending Agreement, then Physical Settlement
shall apply and Counterparty and JPMorgan shall be
deemed to have made the elections described in clauses
(i) and (ii) of the preceding sentence; PROVIDED that
the non-defaulting party shall not be deemed to have
made its respective election under clause (i) or clause
(ii) unless, concurrently with the assignment by the
non-defaulting party of the right to receive delivery of
Shares under the Securities Loan Agreement or the right
to return of the Collateral, as the case may be, the
defaulting party fully performs its obligation under
this Transaction to deliver Shares or to pay the
Settlement Amount, as the case may be, to the extent
that the number of Loaned Shares is less than the number
of Shares required to be delivered hereunder or the
amount of Collateral required to be returned is less
than the amount required to be paid hereunder, as the
case may be.
Physical Settlement: On any Settlement Date, Counterparty shall deliver to
JPMorgan a number of Shares equal to the Settlement
Shares for such Settlement Date, and JPMorgan shall
deliver to Counterparty, by wire transfer of immediately
available funds to an account designated by JPMorgan, an
amount in cash equal to the Settlement Amount for such
Settlement Date, on a delivery versus payment basis. The
Settlement Shares delivered in accordance with the terms
of this Transaction will have been held by Counterparty
as of the Trade Date or will have been acquired by
Counterparty from holders of Shares and not from the
Issuer and will not be subject to any preemptive or
similar rights and will be free and clear of liens and
other encumbrances.
A subsidiary of J.P. Morgan Chase & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 125 London Wall, London, EC2Y 5AJ.
Head office 270 Park Avenue, New York, USA.
5
EXHIBIT 39
[JPMORGAN LOGO]
Cash Settlement: On any Settlement Date, the party indicated below shall
make the specified cash payment by wire transfer of
immediately available funds to the designated account:
(A) If the Forward Price equals or exceeds the
Final Equity Level, JPMorgan shall pay an
amount equal to:
(Forward Price - Final Equity Level) x
Settlement Shares
(B) If the Forward Price is less than the Final
Equity Level, Counterparty shall pay an
amount to equal to:
(Final Equity Level - Forward Price) x
Settlement Shares
Settlement Shares: With respect to any Settlement Date, a number of Shares,
not to exceed the Base Amount, designated as such by
Counterparty in the related Settlement Notice; PROVIDED
that on the Maturity Date the number of Settlement
Shares shall be equal to the Base Amount.
Settlement Amount: For any Settlement Date, an amount in cash equal to the
product of the Forward Price on such Settlement Date and
the number of Settlement Shares for such Settlement
Date.
Final Equity Level: The average execution price paid by JPMorgan to purchase
a number of Shares equal to the Settlement Shares during
the period after JPMorgan has received notice of the
election of Cash Settlement by Counterparty and prior to
the Settlement Date. The average execution price shall
include any fees or commissions paid by JPMorgan in
connection with purchases of the Shares.
Settlement Currency: USD.
Failure to Deliver: Applicable.
ADJUSTMENTS:
Method of Adjustment: Calculation Agent Adjustment.
A subsidiary of J.P. Morgan Chase & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 125 London Wall, London, EC2Y 5AJ.
Head office 270 Park Avenue, New York, USA.
6
EXHIBIT 39
[JPMORGAN LOGO]
EXTRAORDINARY EVENTS:
Consequences of Merger Events:
(a) Share-for-Share: Alternative Obligation on the Business Day
following the Merger Event with mutually agreed upon commercially
reasonable adjustments to the terms to preserve the economics of
the transaction as originally bargained for pursuant to the terms
stated herein; PROVIDED that prior to the Merger Event JPMorgan
shall be permitted to elect a Settlement Date with Physical
Settlement within three (3) Business Days preceding the day such
Merger Event is scheduled to occur.
(b) Share-for-Other: JPMorgan shall be permitted to elect a Settlement
Date with Physical Settlement within three (3) Business Days
preceding the day such Merger Event is scheduled to occur.
(c) Share-for-Combined: In respect of any Share-for-Combined Merger
Event, as soon as practicable but not to exceed five Business Days
prior to the occurrence of the Merger Event, the parties shall
mutually agree upon appropriate adjustments to the terms of the
transaction and, if the parties are unable to so agree, JPMorgan
shall be permitted to elect a Settlement Date with Physical
Settlement within three (3) Business Days preceding the day such
Merger Event is scheduled to occur.
If, as a result of a Merger Event, Counterparty would receive securities
that would be subject to resale restrictions pursuant to Rule 144 or Rule
145 under the Securities Act of 1933, as amended, then Counterparty may
elect Physical Settlement and designate a Settlement Date which shall
occur within three (3) Business Days preceding the day such Merger Event
is scheduled to occur (regardless whether such Settlement Date occurs
within six months of the Effective Date).
Nationalization or Insolvency: Negotiated Close-out.
Termination Currency: USD
Account Details:
Payments to Counterparty: To be advised under separate cover or
telephone confirmed prior to each Payment
Date. Payments to JPMorgan:
To be advised under separate cover or
telephone confirmed prior to each Payment
Date.
Delivery of Shares to JPMorgan: To be advised.
A subsidiary of J.P. Morgan Chase & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 125 London Wall, London, EC2Y 5AJ.
Head office 270 Park Avenue, New York, USA.
7
EXHIBIT 39
[JPMORGAN LOGO]
2. Other Provisions:
CONDITIONS TO EFFECTIVENESS:
The effectiveness of this Confirmation on the Effective Date shall be subject to
(i) the condition that the representations and warranties of the Issuer and
Counterparty contained in the Underwriting Agreement and any certificate
delivered pursuant thereto by the Issuer or Counterparty be true and correct on
the Effective Date as if made as of the Effective Date, (ii) the condition that
the Issuer and Counterparty have each performed all of the obligations required
to be performed by it under the Underwriting Agreement on or prior to the
Effective Date and (iii) the satisfaction of all of the conditions set forth in
Section 6 of the Underwriting Agreement.
COVENANT OF COUNTERPARTY:
Counterparty agrees to comply with its obligations under the terms of the
Securities Loan Agreement, as mutually agreed upon with Borrower thereunder, it
being acknowledged that Counterparty's obligation to return Collateral to
Borrower under the Securities Loan Agreement is expressly conditioned upon
Borrower tendering delivery of the Shares borrowed thereunder.
The parties acknowledge and agree that any Shares delivered by Counterparty to
JPMorgan on any Settlement Date and returned by JPMorgan to securities lenders
from whom JPMorgan borrowed Shares in connection with hedging its exposure to
the Transaction will be freely saleable without further registration or other
restrictions under the Securities Act of 1933, as amended, in the hands of those
securities lenders, PROVIDED that they are not affiliates of the Issuer.
Accordingly, Counterparty agrees that the Settlement Shares that it delivers to
JPMorgan on each Settlement Date will not bear a restrictive legend and that
such Settlement Shares will be deposited in, and the delivery thereof shall be
effected through the facilities of, the Clearance System.
EARLY SETTLEMENT EVENT:
Notwithstanding any other provision hereof, JPMorgan shall have the right, upon
two Exchange Business Days' notice to Counterparty, to designate any Exchange
Business Day to be a Settlement Date with Physical Settlement applicable, and to
select the number of Settlement Shares for such Settlement Date, if in the
judgment of the Calculation Agent, JPMorgan is, on the date of such designation,
unable to hedge JPMorgan's exposure to the Transaction because of the lack of
sufficient Shares being made available for Share borrowing from lenders at a
daily rebate rate received by JPMorgan, net of the cost to JPMorgan of borrowing
the Shares, of at least (i) USD-Federal Funds Rate, MINUS 20 basis points,
DIVIDED by (ii) 360.
Notwithstanding any other provision hereof, if the Issuer reduces the number of
outstanding Shares such that any of the Shares subject to delivery to JPMorgan
pursuant to this Transaction would be treated as "Excess Shares" under the
articles of incorporation of the Issuer, JPMorgan, upon a two Exchange Business
Days' notice, shall have the right to designate any Exchange Business Day to be
a Settlement Date with Physical Settlement applicable with respect to a number
of Settlement Shares necessary to avoid any of the Shares being treated as such
"Excess Shares".
A subsidiary of J.P. Morgan Chase & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 125 London Wall, London, EC2Y 5AJ.
Head office 270 Park Avenue, New York, USA.
8
EXHIBIT 39
[JPMORGAN LOGO]
ASSIGNMENT:
JPMorgan may assign or transfer any of its rights or duties hereunder or
delegate its obligations hereunder to (i) any affiliate of JPMorgan; PROVIDED
that JPMorgan may not make any such assignment if, immediately after giving
effect to the proposed assignment, an Event of Default or Potential Event of
Default with respect to JPMorgan or with respect such proposed assignee would
occur; or (ii) to the extent necessary to avoid any of the Shares subject to
delivery to JPMorgan pursuant to this Transaction being treated as "Excess
Shares" under the articles of incorporation of the Issuer, any entity not
affiliated with JPMorgan with a credit rating at the time of such assignment of
AA- or above by a nationally recognized statistical rating organization (as
defined in the Securities Exchange Act of 1934) with the consent of Counterparty
which consent will not be unreasonably withheld. Notwithstanding any other
provision of the Agreement or this Confirmation to the contrary requiring
JPMorgan to purchase, sell, receive or deliver any Shares or other securities to
or from Counterparty, JPMorgan may designate any of its affiliates to purchase,
sell, receive or deliver such shares or other securities or otherwise to perform
JPMorgan's obligations in respect of the transactions contemplated under the
Agreement or this Confirmation and any such designee may assume such
obligations, and JPMorgan shall be discharged of its obligations to Counterparty
to the extent of any such performance. This Confirmation is not intended and
shall not be construed to create any rights in any Person other than
Counterparty, JPMorgan, an affiliate of JPMorgan designated hereunder and their
respective successors and assigns and no other Person shall assert any rights as
third party beneficiary hereunder. Whenever any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
assigns of such party.
MATTERS RELATING TO JPMSI, AS AGENT:
Each party agrees and acknowledges that (i) JPMSI, an affiliate of Morgan, acts
solely as agent on a disclosed basis with respect to the Transactions
contemplated hereunder, and (ii) JPMSI has no obligation, by guaranty,
endorsement or otherwise, with respect to the obligations of either Counterparty
or JPMorgan hereunder, either with respect to the delivery of cash or Shares,
either at the beginning or the end of the transactions contemplated hereby. In
this regard, each Counterparty and JPMorgan acknowledges and agrees to look
solely to the each other, or any successor or assign, as applicable, for
performance hereunder, and not to JPMSI.
3. The Agreement is further supplemented by the following provisions:
TERMINATION PROVISIONS:
If an Early Termination Date occurs other than as a result of Illegality, this
Transaction shall not be included in calculating any amounts payable under
Section 6(e) of the Agreement, but rather such Early Termination Date shall be
considered the Settlement Date (regardless of whether such Early Termination
Date occurs within six months after the Effective Date) for the Base Amount with
Physical Settlement applicable.
MISCELLANEOUS:
(a) Addresses for Notices. For the purpose of Section 12(a):
Address for notices or communications to Counterparty:
A subsidiary of J.P. Morgan Chase & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 125 London Wall, London, EC2Y 5AJ.
Head office 270 Park Avenue, New York, USA.
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EXHIBIT 39
[JPMORGAN LOGO]
Address: Security Capital Shopping Mall Business Trust
c/o GE Capital Real Estate
292 Long Ridge Road
Stamford, CT 06927
Attention: Philip Mintz
Telecopy No.: 203-585-0179
with a copy to:
Address: GE Capital Real Estate
292 Long Ridge Road
Stamford, CT 06927
Attention: Legal Operation/Security Capital
Telecopy No.: 203-357-6768
and
Address: General Electric Capital Corporation
260 Long Ridge Road
Stamford, CT 06927
Attention: Senior Vice President - Corporate Treasury
and Global Funding Operation
Telecopy No.: 203-357-4975
Address for notices or communications to JPMorgan:
Address: JPMorgan Chase Bank
277 Park Avenue, 11th Floor
New York, NY 10172
Attention: Ross Gray
EDG Corporate Marketing
Telephone No.: 212-622-5730
Telecopy No.: 212-622-0105
with a copy to:
Address: JPMorgan Chase Bank
500 Stanton Christiana Road
Newark, DE 19713-2107
Attention: Collateral Operations
Telephone No.: 302-634-3158
Telecopy No.: 302-634-3208
A subsidiary of J.P. Morgan Chase & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 125 London Wall, London, EC2Y 5AJ.
Head office 270 Park Avenue, New York, USA.
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EXHIBIT 39
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Address for notices or communications to Agent:
Address: J.P. Morgan Securities Inc.
277 Park Avenue, 9th Floor
New York, NY 10172
Attention: Pedro Gonzalez
Telephone No. 212-622-5272
Telecopy No. 212-622-0105
(b) WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING RELATING TO THIS
CONFIRMATION OR ANY CREDIT SUPPORT DOCUMENT. Each party (i) certifies
that no representative, agent or attorney of the other party has
represented, expressly or otherwise, that such other party would not,
in the event of such a suit action or proceeding, seek to enforce the
foregoing waiver and (ii) acknowledges that it and the other party
have been induced to enter into this Confirmation by, among other
things, the mutual waivers and certifications in this Section.
Governing Law: The laws of the State of New York (without
reference to choice of law doctrine).
Representations, Warranties
and Covenants of Counterparty: Counterparty represents and warrants to, and
agrees with, JPMorgan as follows:
(a) Counterparty (i) has such knowledge and
experience in financial and business affairs
as to be capable of evaluating the merits and
risks of entering into the Transaction; and
(ii) has consulted with its own legal,
financial, accounting and tax advisors in
connection with the Transaction.
(b) None of Counterparty or any of its
affiliates is in possession of any material
non-public information regarding the Issuer.
(c) Counterparty shall comply with the
reporting and other requirements of Section 13
and Section 16 of the Securities Exchange Act
of 1934 relating to this Transaction.
(d) Counterparty covenants that it will send
to JPMorgan via facsimile a copy of each
filing under Section 13 or 16 of the Exchange
Act relating to this Transaction concurrently
with filing or transmission for filing, as the
case may be, of such form to or with the
Securities and Exchange Commission (the
"SEC").
A subsidiary of J.P. Morgan Chase & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 125 London Wall, London, EC2Y 5AJ.
Head office 270 Park Avenue, New York, USA.
11
EXHIBIT 39
[JPMORGAN LOGO]
(e) Counterparty is not and has not been the
subject of any civil proceeding of a judicial
or administrative body of competent
jurisdiction that could reasonably be expected
to impair Counterparty's ability to perform
its obligations hereunder.
(f) Neither the consummation of any of the
transactions herein contemplated by
Counterparty nor the fulfillment of the terms
hereof by Counterparty will conflict with,
result in a breach or violation of, or
constitute a default under (i) any law or the
charter or by-laws of Counterparty or (ii) the
terms of any indenture or other agreement or
instrument to which Counterparty or any of its
subsidiaries is a party or bound, or any
judgment, order or decree applicable to
Counterparty or any of its subsidiaries of any
court, regulatory body, administrative agency,
governmental body or arbitrator having
jurisdiction over Counterparty or any of its
subsidiaries other than (with respect to this
clause (ii)) any such conflicts, breaches,
violations or defaults that would not
reasonably be likely to have a material
adverse effect on the ability of Counterparty
to consummate the transactions herein
contemplated or to fulfill the terms hereof.
(g) Counterparty will immediately notify
JPMorgan upon obtaining knowledge of the
occurrence of any event that would constitute
an Event of Default, a Potential Event of
Default or a Potential Adjustment Event.
(h) Counterparty is an "eligible contract
participant" as such term is defined in
Section 1(a)(12) of the Commodity Exchange
Act, as amended.
(i) Counterparty is not as of the Trade Date,
and will not as of the Effective Date after
giving effect to the transactions contemplated
hereby, be insolvent.
(j) The parties hereto intend that (a)
JPMorgan be a financial institution within the
meaning of Section 101(22) of Title 11 of the
United States Code (the "BANKRUPTCY Code"),
(b) the Agreement and this Confirmation be a
securities contract, as such term is defined
in Section 741(7) of the Bankruptcy Code, (c)
each and every transfer of funds, securities
and other
A subsidiary of J.P. Morgan Chase & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 125 London Wall, London, EC2Y 5AJ.
Head office 270 Park Avenue, New York, USA.
12
EXHIBIT 39
[JPMORGAN LOGO]
property under the Agreement or this
Confirmation be a settlement payment or a
margin payment, as such terms are used in
Sections 362(b)(6) and 546(e) of the
Bankruptcy Code, (d) the rights given to
JPMorgan hereunder upon an Event of Default
constitute the rights to cause the liquidation
of a securities contract and to set off mutual
debts and claims in connection with a
securities contract, as such terms are used in
Sections 555 and 362(b)(6) of the Bankruptcy
Code, and (e) any or all obligations that
either party has with respect to this
Transaction or the Agreement constitute
property held by or due from such party to
margin, guaranty or settle obligations of the
other party with respect to Transactions under
this Confirmation or any other agreement
between such parties.
(k) Counterparty and JPMorgan agree that
Counterparty and Counterparty's employees,
representatives, or other agents are
authorized to disclose to any and all persons,
without limitation of any kind, the U.S.
federal income tax treatment and U.S. federal
income tax structure of the transaction and
all analyses, that have been provided to
Counterparty relating to such tax treatment
and tax structure.
(l) Counterparty agrees that the Settlement
Shares delivered in accordance with the terms
of this Transaction will have been held by
Counterparty from the Trade Date or after the
date hereof will have been acquired by
Counterparty from holders of Shares other than
the Issuer and will not be subject to any
preemptive or similar rights and will be free
and clear of liens and other encumbrances.
A subsidiary of J.P. Morgan Chase & Co.
Incorporated with Limited Liability
as a New York State chartered commercial bank.
Registered in England branch number BR000746. Authorised by the FSA.
Registered branch address 125 London Wall, London, EC2Y 5AJ.
Head office 270 Park Avenue, New York, USA.
13
Please confirm that the foregoing correctly sets forth the terms of our
agreement by signing and returning this Confirmation to JPMSI.
Confirmed as of the date first above written:
JPMORGAN CHASE BANK,
BY ITS AGENT J.P. MORGAN SECURITIES INC.
By: /s/ STEPHEN E. GRAY
--------------------------------------------------
Name: Stephen E. Gray
Title: Managing Director
Confirmed as of the date first above written:
SECURITY CAPITAL SHOPPING
MALL BUSINESS TRUST
By: /s/ PHILIP A. MINTZ
--------------------------------------------------
Name: Philip A. Mintz
Title: Vice President
EXHIBIT 40
SUPPLEMENTAL SECURITIES LOAN AGREEMENT
AGREEMENT dated as of June 18, 2003 between MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED, a broker-dealer registered pursuant to the Securities
Exchange Act of 1934, as borrower ("Borrower"), MERRILL LYNCH INTERNATIONAL,
through Borrower as its agent ("MLI"), SECURITY CAPITAL SHOPPING MALL BUSINESS
TRUST, a Maryland real estate investment trust, as lender ("Lender") and UBS
SECURITIES LLC ("UBS"), a dealer registered pursuant to the Securities Exchange
Act of 1934, as agent for the Lender. This Supplemental Agreement, with respect
only to the loan of securities referred to below, supplements and amends the
Securities Lending Agency Client Agreement dated as of June 17, 2003 (the
"Client Agreement") between Lender and UBS and the Securities Loan Agreement
dated as of February 24, 2002 (the "Agency Securities Loan Agreement") between
UBS and Borrower.
The parties hereto agree as follows:
1. LOANS OF REGENCY CENTERS CORPORATION COMMON STOCK.
1.1 Subject to the terms and conditions of this Agreement and the
Agency Securities Loan Agreement and the Client Agreement, if after reasonable
efforts the Borrower is unable to borrow, on terms reasonably acceptable to
Borrower, shares of the Common Stock of Regency Centers Corporation ("Regency
Shares") from lenders reasonably acceptable to Borrower available in the market,
the Borrower may orally initiate a transaction whereby UBS, as agent for Lender,
may lend to Borrower, who along with Wachovia Bank, National Association,
JPMorgan Chase Bank and Citigroup Global Markets, Inc., shall be the sole
Eligible Borrowers with respect to the Regency Shares under the Client
Agreement, up to 11,720,000 Regency Shares which are fully-paid or which
constitute excess margin shares owned by Lender. Each such loan shall be on the
terms and conditions contained in the Agency Securities Loan Agreement, as
supplemented by this Agreement. Terms not defined herein shall have the meanings
ascribed to them in the Agency Securities Loan Agreement as in existence on the
date hereof, as amended by this Agreement
2. FEE FOR LOAN.
2.1 Unless otherwise agreed, (a) the Loan Fee under Section 4.1 of the
Agency Securities Loan Agreement shall be at the rate of 20 basis points (0.20%)
per annum, computed daily on the basis of a 360-day year, and (b) the Cash
Collateral Fee under Section 4.2 of the Agency Securities Loan Agreement shall
be as displayed on the page Feds Open - Index - [GO] on the BLOOMBERG
Professional Service, or successor page or such other source for the US dollar
Federal Funds rate designated by Borrower and Lender.
1
3. TERMINATION OF THE LOAN.
3.1 Borrower may terminate a Loan on any Business Day by giving notice
to Lender and UBS and transferring the Loaned Securities to UBS before the close
of business of Borrower on such Business Day.
3.2 UBS, as agent for Lender, may terminate a Loan on a termination
date established by notice given to Borrower prior to the close of business on a
Business Day. The termination date established by a termination notice given by
UBS to Borrower shall be a date no earlier than the standard settlement date for
trades of the Loaned Securities entered into on the date of such notice, which
date shall, unless Borrower, Lender and UBS agree to the contrary, be the third
Business Day following such notice.
4. RIGHTS OF BORROWER IN RESPECT OF THE LOANED SHARES.
4.1 The rights of Borrower in respect of Loaned Securities under
Section 6 of the Agency Securities Loan Agreement are limited to the extent that
Borrower shall not have any incidents of ownership or take any action with
respect to the Loaned Securities that would cause any Loaned Securities to
become "Excess Shares" under the articles of incorporation of Regency Centers
Corporation; PROVIDED, HOWEVER, that, to the extent required to prevent any
Loaned Securities to become "Excess Shares", Borrower shall have the right, upon
written consent of the Lender (which consent shall not be unreasonably withheld)
to assign its obligations under this Agreement to any entity with a credit
rating of AA- or above or to an affiliate of the Borrower without the prior
consent of the Lender; PROVIDED, FURTHER, that the Borrower may not make any
such assignment if immediately after giving effect to the proposed assignment,
there would be an Event of Default or Potential Event of Default of the Borrower
or such proposed assignee pursuant to the Confirmation.
5. MARK TO MARKET MARGIN.
5.1 For purposes of Section 8 of the Agency Securities Loan Agreement
and Sections 3(a) and 3(b) of the Client Agreement, the Market Value of the
Collateral and the Required Collateral Level shall be 102% of the Market Value
of the Loaned Securities, and shall be valued on an Account-by-Account basis as
contemplated by Section 8.4 of the Agency Securities Loan Agreement. Without the
prior written consent of Borrower, Lender will not permit the collateral to be
held other than in Lender's Client Account at UBS. Collateral shall consist only
of cash and shall be invested as specified by Lender and Borrower.
6. Forward Sale Agreement.
6.1 Notwithstanding anything in this Agreement to the contrary,
Borrower, UBS and Lender hereby agree and acknowledge that, pursuant to the
terms of a Confirmation dated June 18, 2003 between Lender and Merrill Lynch
International (the "Confirmation"), in the event that Borrower does not deliver
Regency Shares to Lender as required under this Agreement, then Lender shall
have the right to
2
assign to MLI its right to receive Regency Shares from Borrower under the Agency
Securities Loan Agreement and this Agreement to satisfy an equivalent delivery
obligation of Lender under the Confirmation.
6.2 Notwithstanding anything in the Agency Securities Loan Agreement
and this Agreement to the contrary, Borrower, UBS and Lender hereby agree and
acknowledge that if upon tender or delivery of Regency Shares to Lender by
Borrower under the Agency Securities Loan Agreement and this Agreement, Lender
fails to return the Collateral as required under the Agency Securities Loan
Agreement and this Agreement, then MLI shall have the right to satisfy any
portion of the payment obligation due to Lender under the Confirmation, in whole
or in part, by paying all or part of such amount due to the Borrower and the
Lender shall retain an amount of the Collateral under the Agency Securities Loan
Agreement and this Agreement equal to the amount of MLI's payment to Borrower,
in which event the Borrower shall deliver to MLI the number of Regency Shares
corresponding to such payment amount.
6.3 Notwithstanding anything in the Agency Securities Loan Agreement
and this Agreement to the contrary, Borrower and Lender hereby agree and
acknowledge that, in the event that MLI fails to make any payment to Lender
required under the Confirmation, Lender may retain an amount of Collateral equal
to such payment and apply it in satisfaction of MLI's payment obligation under
the Confirmation and assign to MLI its right to receive Regency Shares in
repayment of the Loan evidenced by the Agency Securities Loan Agreement and this
Agreement.
6.4 Notwithstanding anything in the Agency Securities Loan Agreement
and this Agreement to the contrary, if Physical Settlement (as defined in the
Confirmation) is elected under the Confirmation, either Lender may assign, or,
to the extent, but only to the extent, that MLI concurrently tenders payment to
Lender as required thereunder, MLI may cause Lender to assign to MLI, any right
of Lender to receive delivery of Regency Shares from Borrower under the Agency
Securities Loan Agreement and this Agreement to satisfy the delivery obligation
of Lender under the Confirmation with respect to the number of Regency Shares
that Lender is then entitled to receive from Borrower hereunder. In such event,
Lender shall return the Collateral to Borrower upon receipt of payment by MLI
under the Confirmation.
7. APPLICABLE LAW.
7.1 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be
performed wholly within such state, without reference to its conflicts of laws
principles or rules.
8. REPRESENTATION OF THE LENDER.
8.1 Lender hereby represents and warrants to Borrower that the
representations and warranties of Lender contained in Section 4(a) of the Client
Agreement are true and correct as of the date hereof (provided that Section
4(a)(iii) is subject to the rights of MLI
3
under the Confirmation) and shall be deemed made and repeated for all purposes
at and as of all times when any Loan entered into under the Agency Securities
Loan Agreement is outstanding.
9. TERMINATION.
9.1 Lender and UBS agree that they will not terminate the Client
Agreement prior to the Settlement Date specified in the Confirmation without the
prior written consent of Borrower.
10. DEFAULT.
10.1 In the event of any default by Borrower under any Loan, UBS shall
take action only in accordance with express instructions from Lender, Section
3(f) of the Client Agreement to the contrary notwithstanding.
11. COMPENSATION OF UBS.
11.1 The compensation of UBS under the Client Agreement shall be paid
by Lender and UBS is not authorized to collect any compensation from the
principal of the Collateral or that would affect the Cash Collateral Fee payable
to Borrower.
4
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ KEITH BABBITT
------------------------------------------
Name: Keith Babbitt
Title: Managing Director
MERRILL LYNCH INTERNATIONAL
By: /s/ MARCELLA VULLO
------------------------------------------
Name: Marcella Vullo
Title: Authorized Signatory
SECURITY CAPITAL SHOPPING MALL BUSINESS
TRUST
By: /s/ PHILIP A. MINTZ
------------------------------------------
Name: Philip A. Mintz
Title: Vice President
UBS SECURITIES LLC
By: /s/ DENISE KARABOTS
------------------------------------------
Name: Denise Karabots
Title: Executive Director
5
GUARANTY
GUARANTY (the "Guaranty"), dated as of June ____, 2003 by GENERAL
ELECTRIC CAPITAL CORPORATION, a Delaware corporation ("GE Capital") in favor of
Merrill Lynch, Pierce, Fenner & Smith Incorporated (the "Counterparty").
RECITALS
WHEREAS, UBS Securities LLC ("UBS") and Security Capital Shopping Mall
Business Trust, a Maryland real estate investment trust (the "Lender") have
entered into a Securities Lending Agency Client Agreement, dated as of June 17,
2003 (the "Client Agreement"), UBS and Counterparty have entered into a
Securities Loan Agreement dated June 17, 2003 (the "Agency Securities Loan
Agreement") and UBS, Lender and Counterparty have entered into a Supplemental
Securities Loan Agreement (the "Supplemental Agreement") providing, among other
things, for the Lender to lend to Counterparty certain securities against a
pledge of collateral (the "Transactions");
WHEREAS, the Counterparty has requested GE Capital, as the parent of the
Lender, to provide a guaranty to the Counterparty on the terms and conditions
hereinafter provided; and
WHEREAS, GE Capital is willing to enter into this Guaranty to induce the
Counterparty to enter into the Transactions with the Lender;
NOW, THEREFORE, GE Capital hereby agrees:
Section 1. GUARANTY BY GE CAPITAL.
(a) From and after the date hereof, GE Capital hereby
irrevocably and unconditionally guarantees the due and punctual payment
of all amounts payable by UBS, as agent of the Lender, to the
Counterparty pursuant to the terms of Sections ___________ of the Agency
Securities Loan Agreement and Section ___ of the Supplemental Agreement
when the same shall become due and payable, whether on scheduled payment
dates or otherwise, in each case after any applicable grace periods or
notice requirements; provided, however, that GE Capital shall not be
liable to make any payment until two Business Days (as used herein, a
"Business Day" shall refer to a day other than a Saturday or a Sunday on
which commercial banks are open for business in the City of New York,
United States of America) following receipt by GE Capital of written
notice from the Counterparty that a payment is due thereunder. GE Capital
hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Agency
Securities Loan Agreement or the Supplemental Agreement; any change in or
amendment thereto, the absence of any action to enforce the same, any
waiver or consent by the Counterparty with respect to any provision
thereof; the recovery of any judgment against the Lender or any action to
enforce the same; or
6
any other circumstances which may otherwise constitute a legal or
equitable discharge or defense of a guarantor; provided, however, that
nothing contained herein shall be constituted to be a waiver by GE
Capital of presentment or demand of payment or notice to GE Capital with
respect to the Agency Securities Loan Agreement or the Supplemental
Agreement and the obligations evidenced thereby or hereby. GE Capital
covenants that this Guaranty will not be discharged except by complete
performance of the obligations contained in the Agency Securities Loan
Agreement, in the Supplemental Agreement and in this Guaranty.
(b) GE Capital shall be subrogated to all rights of the
Counterparty in respect of any amounts paid by GE Capital pursuant to the
provisions of this Guaranty; provided, however, that GE Capital shall be
entitled to enforce, or to receive any payments arising out of or based
upon, such right of subrogation with respect to any Transaction only
after the payment of all amounts owed by the Lender to the Counterparty
with respect to such Transaction have been paid in full.
(c) This Guaranty shall continue to be effective or reinstated,
as the case may be, if at any time any payment made by the Lender to the
Counterparty with respect to a Transaction or pursuant to the terms of
the Agency Securities Loan Agreement and in the Supplemental Agreement is
rescinded or must otherwise be returned by the Counterparty upon the
insolvency, bankruptcy or reorganization by GE Capital, the Lender or
otherwise, all as though such payment had not been made.
Section 2. MISCELLANEOUS.
(a) NOTICES. All notices to GE Capital under this Guaranty and
copies of all notices of payment failure or other breaches by UBS or the
Lender of the Client Agreement or the Agency Securities Loan Agreement
shall, until GE Capital furnishes written notice to the contrary, be
mailed or delivered to GE Capital at 201 High Ridge Road, Stamford,
Connecticut 06927-9400, and directed to the attention of the Senior Vice
President-Corporate Treasury and Global Funding Operation of GE Capital.
(b) GOVERNING LAW. This Guaranty shall be construed and
enforced in accordance with, and governed by, the laws of the State of
New York, United States of America.
(c) INTERPRETATION. The headings of the sections and other
subdivisions of this Guaranty are inserted for convenience only and shall
not be deemed to constitute a part hereof.
(d) ATTORNEY'S COST. GE Capital agrees to pay all reasonable
attorney's fees and disbursements and all other reasonable and actual
costs and expenses
7
which may be incurred by the Counterparty in the enforcement of this
Guaranty of the Agency Securities Loan Agreement and the Supplemental
Agreement.
(e) NO SET-OFF. By acceptance of this Guaranty, the
Counterparty shall be deemed to have waived any right to set-off,
combine, consolidate, or otherwise appropriate and apply, any
indebtedness at any time held or owing by the Counterparty against, or on
account of, any obligations or liabilities of GE Capital under this
Guaranty.
(f) CURRENCY OF PAYMENT. Any payment to be made by GE Capital
shall be made in the same currency as designated for payment in the
Agency Securities Loan Agreement and the Supplemental Agreement and such
designation of the currency of payment is of the essence.
(g) TRANSFER. Neither this Guaranty nor any interest or
obligation in or under this Guaranty may be transferred (whether by way
of security or otherwise) by GE Capital or the Counterparty without the
prior written consent of the other, except that the Counterparty may,
without the consent of GE Capital, transfer its interest in this Guaranty
to any person or entity to which any interest or obligation in or under
the Agency Securities Loan Agreement or the Supplemental Agreement or any
Transaction is transferred in a manner that is not inconsistent with the
Agency Securities Loan Agreement or the Supplemental Agreement.
GENERAL ELECTRIC CAPITAL CORPORATION
By:
-------------------------------------------------------
Senior Vice President - Corporate Treasury
and Global Funding Operation
ACKNOWLEDGEMENT AND AGREEMENT
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED HEREBY ACKNOWLEDGES AND
CONSENTS TO THE PROVISIONS OF THE FOREGOING GUARANTY.
8
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:___________________________________
Title:
EXHIBIT 41
SUPPLEMENTAL SECURITIES LOAN AGREEMENT
AGREEMENT dated as of June 18 , 2003 between WACHOVIA BANK, NATIONAL
ASSOCIATION, as borrower ("Borrower"), SECURITY CAPITAL SHOPPING MALL BUSINESS
TRUST, a Maryland real estate investment trust, as lender ("Lender") and UBS
SECURITIES LLC, AS AGENT ("UBS"), a dealer registered pursuant to the Securities
Exchange Act of 1934, as agent for the Lender. This Supplemental Agreement, with
respect only to the loan of securities referred to below, supplements and amends
the Securities Lending Agency Client Agreement dated as of June 17, 2003 (the
"Client Agreement") between Lender and UBS and the Securities Loan Agreement
dated as of June 18, 2003 (the "Agency Securities Loan Agreement") between UBS
and Borrower.
The parties hereto agree as follows:
1. LOANS OF REGENCY CENTERS CORPORATION COMMON STOCK.
1.1 Subject to the terms and conditions of this Agreement and the
Agency Securities Loan Agreement and the Client Agreement, if after reasonable
efforts the Borrower is unable to borrow, on terms reasonably acceptable to
Borrower, shares of the Common Stock of Regency Centers Corporation ("Regency
Shares") from lenders reasonably acceptable to Borrower available in the market,
the Borrower may orally initiate a transaction whereby UBS, as agent for Lender,
may lend to Borrower, who along with Merrill Lynch, Pierce, Fenner & Smith
Incorporated, JPMorgan Chase Bank and Citigroup Global Markets, Inc., shall be
the sole Eligible Borrowers with respect to the Regency Shares under the Client
Agreement, up to 3,906,666 Regency Shares for Borrower, which are fully-paid or
which constitute excess margin shares owned by Lender. Each such loan shall be
on the terms and conditions contained in the Agency Securities Loan Agreement,
as supplemented by this Agreement. Terms not defined herein shall have the
meanings ascribed to them in the Agency Securities Loan Agreement as in
existence on the date hereof, as amended by this Agreement
2. FEE FOR LOAN.
2.1 Unless otherwise agreed, (a) the Loan Fee under Section 4.1 of the
Agency Securities Loan Agreement shall be at the rate of 20 basis points (0.20%)
per annum, computed daily on the basis of a 360-day year, and (b) the Cash
Collateral Fee under Section 4.2 of the Agency Securities Loan Agreement shall
be as displayed on the page page FEDSOPEN [Index] [GO] on the BLOOMBERG
Professional Service or any successor page available on Bloomberg for
determining such rate or such other source for the US dollar Federal Funds rate
designated by Borrower and Lender.
3. TERMINATION OF THE LOAN.
3.1 Borrower may terminate a Loan on any Business Day by giving notice
to Lender and UBS and transferring the Loaned Securities to UBS before the close
of business of Borrower on such Business Day.
3.2 UBS, as agent for Lender, may terminate a Loan on a termination
date established by notice given to Borrower prior to the close of business on a
Business Day. The termination date established by a termination notice given by
UBS to Borrower shall be a date no earlier than the standard settlement date for
trades of the Loaned Securities entered into on the date of such notice, which
date shall, unless Borrower, Lender and UBS agree to the contrary, be the third
Business Day following such notice.
4. RIGHTS OF BORROWER IN RESPECT OF THE LOANED SHARES.
4.1 The rights of Borrower in respect of Loaned Securities under
Section 6 of the Agency Securities Loan Agreement are limited to the extent that
Borrower shall not have any incidents of ownership or take any action with
respect to the Loaned Securities that would cause any Loaned Securities to
become "Excess Shares" under the articles of incorporation of Regency Centers
Corporation; PROVIDED, HOWEVER, that, to the extent required to prevent any
Loaned Securities to become "Excess Shares", Borrower shall have the right, upon
written consent of the Lender (which consent shall not be unreasonably withheld)
to assign its obligations under this Agreement to any entity with a credit
rating of AA- or above or to an affiliate of the Borrower without the prior
consent of the Lender; PROVIDED, FURTHER, that the Borrower may not make any
such assignment if immediately after giving effect to the proposed assignment,
there would be an Event of Default or Potential Event of Default of the Borrower
or such proposed assignee pursuant to the Confirmation.
5. MARK TO MARKET MARGIN.
5.1 For purposes of Section 8 of the Agency Securities Loan Agreement
and Sections 3(a) and 3(b) of the Client Agreement, the Market Value of the
Collateral and the Required Collateral Level shall be 102% of the Market Value
of the Loaned Securities, and shall be valued on an Account-by-Account basis as
contemplated by Section 8.4 of the Agency Securities Loan Agreement. Without the
prior written consent of Borrower, Lender will not permit the collateral to be
held other than in Lender's Client Account at UBS. Collateral shall consist only
of cash and shall be invested as specified by Lender and Borrower.
6. Forward Sale Agreement.
6.1 Notwithstanding anything in this Agreement to the contrary,
Borrower, UBS and Lender hereby agree and acknowledge that, pursuant to the
terms of a Confirmation dated June 19, 2003 between Lender and Borrower (the
"Confirmation"), in the event that Borrower does not deliver Regency Shares to
Lender as required under this Agreement, then Lender shall have the right to
apply its right to receive Regency Shares
2
from Borrower under the Agency Securities Loan Agreement and this Agreement
against an equivalent delivery obligation of Lender under the Confirmation and
assign to Borrower Lender's interest in the Collateral under the Agency
Securities Loan Agreement and this Agreement with respect to such Regency Shares
in satisfaction of Borrower's corresponding payment obligation under the
Confirmation.
6.2 Notwithstanding anything in the Agency Securities Loan Agreement
and this Agreement to the contrary, Borrower, UBS and Lender hereby agree and
acknowledge that if upon tender of Regency Shares to Lender by Borrower under
the Agency Securities Loan Agreement and this Agreement, Lender fails to return
the Collateral as required under the Agency Securities Loan Agreement and this
Agreement, then Borrower shall have the right to satisfy, in whole or in part,
any portion of the payment obligation due to Lender under the Confirmation, in
whole or in part, by directing the Lender to retain an amount of the Collateral
under the Agency Securities Loan Agreement and this Agreement equal to such
payment, in which event instead of delivering the tendered Regency Shares to the
Lender, the Borrower shall retain such Shares and the corresponding obligation
of the Lender to deliver the Shares under the Confirmation shall be satisfied.
6.3 Notwithstanding anything in the Agency Securities Loan Agreement
and this Agreement to the contrary, Borrower and Lender hereby agree and
acknowledge that, in the event that Borrower fails to make any payment to Lender
required under the Confirmation, Lender may retain an amount of Collateral equal
to such payment and apply it in satisfaction of Borrower's payment obligation
under the Confirmation, in whole or in part as the case may be, and in
conjunction therewith shall assign to Borrower its right to receive the
corresponding Regency Shares in repayment of the Loan evidenced by the Agency
Securities Loan Agreement and this Agreement.
6.4 Notwithstanding anything in the Agency Securities Loan Agreement
and this Agreement to the contrary, if Physical Settlement (as defined in the
Confirmation) is elected under the Confirmation, either Lender may assign, or,
to the extent, but only to the extent, that Borrower concurrently tenders
payment to Lender as required thereunder, Borrower may direct Lender to apply
any right of Lender to receive delivery of Regency Shares from Borrower under
the Agency Securities Loan Agreement and this Agreement to satisfy the delivery
obligation of Lender under the Confirmation with respect to the number of
Regency Shares that Lender is then entitled to receive from Borrower hereunder.
In such event, Lender shall return the Collateral to Borrower upon receipt of
payment by Borrower under the Confirmation.
6.5 Any obligation of the Lender to return Collateral in excess of any
amounts applied towards the obligations owed under the Confirmation shall remain
as an obligation of Lender to Borrower under the Agency Securities Loan
Agreement and this Agreement. Any obligation of the Borrower to pay any amounts
under the Confirmation in excess of the Collateral shall remain as an obligation
of Borrower to Lender under the Confirmation.
3
7. APPLICABLE LAW.
7.1 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be
performed wholly within such state, without reference to its conflicts of laws
principles or rules.
8. REPRESENTATION OF THE LENDER.
8.1 Lender hereby represents and warrants to Borrower that the
representations and warranties of Lender contained in Section 4(a) of the Client
Agreement are true and correct as of the date hereof (provided that Section
4(a)(iii) is subject to the rights of Wachovia Securities under the
Confirmation) and shall be deemed made and repeated for all purposes at and as
of all times when any Loan entered into under the Agency Securities Loan
Agreement is outstanding.
9. TERMINATION.
9.1 Lender and UBS agree that they will not terminate the Client
Agreement prior to the Settlement Date specified in the Confirmation without the
prior written consent of Borrower.
10. DEFAULT.
10.1 In the event of any default by Borrower under any Loan, UBS shall
take action only in accordance with express instructions from Lender, Section
3(f) of the Client Agreement to the contrary notwithstanding.
11. COMPENSATION OF UBS.
11.1 The compensation of UBS under the Client Agreement shall be paid
by Lender and UBS is not authorized to collect any compensation from the
principal of the Collateral or that would affect the Cash Collateral Fee payable
to Borrower.
4
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ MARY LOUISE GUTTMANN
------------------------------------------
Name: Mary Louise Guttmann
Title: Senior Vice President
SECURITY CAPITAL SHOPPING MALL BUSINESS TRUST
By: /s/ PHILIP A. MINTZ
-----------------------------------------
Name: Philip A. Mintz
Title: Vice President
UBS SECURITIES LLC
By: /s/ DENISE KARABOTS
-----------------------------------------
Name: Denise Karabots
Title: Executive Director
5
GUARANTY
GUARANTY (the "Guaranty"), dated as of June 18, 2003 by GENERAL ELECTRIC
CAPITAL CORPORATION, a Delaware corporation ("GE Capital") in favor of Wachovia
Bank, National Association (the "Counterparty").
RECITALS
WHEREAS, UBS Securities LLC ("UBS") and Security Capital Shopping Mall
Business Trust, a Maryland real estate investment trust (the "Lender") have
entered into a Securities Lending Agency Client Agreement, dated as of June 17,
2003 (the "Client Agreement"), UBS and Counterparty have entered into a
Securities Loan Agreement dated June 18, 2003 (the "Agency Securities Loan
Agreement") and UBS, Lender and Counterparty have entered into a Supplemental
Securities Loan Agreement (the "Supplemental Agreement") providing, among other
things, for the Lender to lend to Counterparty certain securities against a
pledge of collateral in connection with a forward transaction with a trade date
of June 19, 2003 (the "Transactions");
WHEREAS, the Counterparty has requested GE Capital, as the parent of the
Lender, to provide a guaranty to the Counterparty on the terms and conditions
hereinafter provided; and
WHEREAS, GE Capital is willing to enter into this Guaranty to induce the
Counterparty to enter into the Transactions with the Lender;
NOW, THEREFORE, GE Capital hereby agrees:
Section 1. GUARANTY BY GE CAPITAL.
(a) From and after the date hereof, GE Capital hereby
irrevocably and unconditionally guarantees the due and punctual payment
of all amounts payable by the Lender, to the Counterparty in connection
with the Transactions pursuant to the terms of the Agency Securities Loan
Agreement and the Supplemental Agreement when the same shall become due
and payable, whether on scheduled payment dates or otherwise, in each
case after any applicable grace periods or notice requirements; provided,
however, that GE Capital shall not be liable to make any payment until
two Business Days (as used herein, a "Business Day" shall refer to a day
other than a Saturday or a Sunday on which commercial banks are open for
business in the City of New York, United States of America) following
receipt by GE Capital of written notice from the Counterparty that a
payment is due thereunder. GE Capital hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Agency Securities Loan Agreement or
the Supplemental Agreement; any change in or amendment thereto, the
absence of any action to enforce the same, any waiver or consent by the
Counterparty with respect to any provision thereof; the recovery of
6
any judgment against the Lender or any action to enforce the same; or any
other circumstances which may otherwise constitute a legal or equitable
discharge or defense of a guarantor; provided, however, that nothing
contained herein shall be constituted to be a waiver by GE Capital of
presentment or demand of payment or notice to GE Capital with respect to
the Agency Securities Loan Agreement or the Supplemental Agreement and
the obligations evidenced thereby or hereby. GE Capital covenants that
this Guaranty will not be discharged except by complete performance of
the obligations contained in the Agency Securities Loan Agreement, in the
Supplemental Agreement and in this Guaranty.
(b) GE Capital shall be subrogated to all rights of the
Counterparty in respect of any amounts paid by GE Capital pursuant to the
provisions of this Guaranty; provided, however, that GE Capital shall be
entitled to enforce, or to receive any payments arising out of or based
upon, such right of subrogation with respect to any Transaction only
after the payment of all amounts owed by the Lender to the Counterparty
with respect to such Transaction have been paid in full.
(c) This Guaranty shall continue to be effective or reinstated,
as the case may be, if at any time any payment made by the Lender to the
Counterparty with respect to a Transaction or pursuant to the terms of
the Agency Securities Loan Agreement and in the Supplemental Agreement is
rescinded or must otherwise be returned by the Counterparty upon the
insolvency, bankruptcy or reorganization by GE Capital, the Lender or
otherwise, all as though such payment had not been made.
Section 2. MISCELLANEOUS.
(a) NOTICES. All notices to GE Capital under this Guaranty and
copies of all notices of payment failure or other breaches by UBS or the
Lender of the Client Agreement or the Agency Securities Loan Agreement
shall, until GE Capital furnishes written notice to the contrary, be
mailed or delivered to GE Capital at 201 High Ridge Road, Stamford,
Connecticut 06927-9400, and directed to the attention of the Senior Vice
President-Corporate Treasury and Global Funding Operation of GE Capital.
(b) GOVERNING LAW. This Guaranty shall be construed and
enforced in accordance with, and governed by, the laws of the State of
New York, United States of America.
(c) INTERPRETATION. The headings of the sections and other
subdivisions of this Guaranty are inserted for convenience only and shall
not be deemed to constitute a part hereof.
(d) ATTORNEY'S COST. GE Capital agrees to pay all reasonable
attorney's fees and disbursements and all other reasonable and actual
costs and expenses
7
which may be incurred by the Counterparty in the enforcement of this
Guaranty of the Agency Securities Loan Agreement and the Supplemental
Agreement.
(e) NO SET-OFF. By acceptance of this Guaranty, the
Counterparty shall be deemed to have waived any right to set-off,
combine, consolidate, or otherwise appropriate and apply, any
indebtedness at any time held or owing by the Counterparty against, or on
account of, any obligations or liabilities of GE Capital under this
Guaranty.
(f) CURRENCY OF PAYMENT. Any payment to be made by GE Capital
shall be made in the same currency as designated for payment in the
Agency Securities Loan Agreement and the Supplemental Agreement and such
designation of the currency of payment is of the essence.
(g) TRANSFER. Neither this Guaranty nor any interest or
obligation in or under this Guaranty may be transferred (whether by way
of security or otherwise) by GE Capital or the Counterparty without the
prior written consent of the other, except that the Counterparty may,
without the consent of GE Capital, transfer its interest in this Guaranty
to any person or entity to which any interest or obligation in or under
the Agency Securities Loan Agreement or the Supplemental Agreement or any
Transaction is transferred in a manner that is not inconsistent with the
Agency Securities Loan Agreement or the Supplemental Agreement.
GENERAL ELECTRIC CAPITAL CORPORATION
By:
-------------------------------------------
Senior Vice President - Corporate Treasury
and Global Funding Operation
ACKNOWLEDGEMENT AND AGREEMENT
WACHOVIA BANK, NATIONAL ASSOCIATION HEREBY ACKNOWLEDGES AND CONSENTS TO THE
PROVISIONS OF THE FOREGOING GUARANTY.
WACHOVIA BANK, NATIONAL ASSOCIATION
By:
-------------------------------------------
Title:
8
EXHIBIT 42
SUPPLEMENTAL SECURITIES LOAN AGREEMENT
AGREEMENT dated as of June 18, 2003 between JPMORGAN CHASE BANK, a New
York Banking corporation, as borrower ("BORROWER"), SECURITY CAPITAL SHOPPING
MALL BUSINESS TRUST, a Maryland real estate investment trust, as lender
("LENDER") and UBS SECURITIES LLC, a dealer registered pursuant to the
Securities Exchange Act of 1934, as amended, as agent for the Borrower ("UBS").
This Supplemental Agreement, with respect only to the loan of securities
referred to below, supplements and amends the Securities Lending Agency Client
Agreement dated as of June 18, 2003 (the "CLIENT AGREEMENT") between Lender and
UBS and the Securities Loan Agreement dated as of December 22, 1999 (the "AGENCY
SECURITIES LOAN AGREEMENT") among UBS and J.P. Morgan Securities Inc. ("JPMSI"),
as amended to add Borrower as a party pursuant to a letter agreement dated as of
June 18, 2003, among UBS, JPMSI and Borrower.
The parties hereto agree as follows:
1. LOANS OF REGENCY CENTERS CORPORATION COMMON STOCK.
1.1 Subject to the terms and conditions of this Agreement, the Agency
Securities Loan Agreement and the Client Agreement, if after reasonable efforts
the Borrower is unable to borrow, on terms reasonably acceptable to Borrower,
shares of the Common Stock of Regency Centers Corporation ("REGENCY SHARES")
from lenders reasonably acceptable to Borrower available in the market, the
Borrower may orally initiate a transaction whereby UBS, as agent for Lender, may
lend to Borrower, who along with Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Wachovia Bank, National Association and Citigroup Global Markets,
Inc., shall be the sole Eligible Borrowers with respect to the Regency Shares
under the Client Agreement, up to 3,906,667 Regency Shares which are fully-paid
or which constitute excess margin shares owned by Lender. Each such loan shall
be on the terms and conditions contained in the Agency Securities Loan
Agreement, as supplemented by this Agreement. Terms not defined herein shall
have the meanings ascribed to them in the Agency Securities Loan Agreement as in
existence on the date hereof, as amended by this Agreement
2. FEE FOR LOAN.
2.1 Unless otherwise agreed, (a) the Loan Fee under Section 4.1 of the
Agency Securities Loan Agreement shall be at the rate of 20 basis points (0.20%)
per annum, computed daily on the basis of a 360-day year, and (b) the Cash
Collateral Fee under Section 4.2 of the Agency Securities Loan Agreement shall
be as displayed on the page Feds Open - Index - [GO] on the BLOOMBERG
Professional Service, or successor page or such other source for the US dollar
Federal Funds rate designated by Borrower and Lender.
3. TERMINATION OF THE LOAN.
3.1 Borrower may terminate a Loan on any Business Day by giving notice
to Lender and UBS and transferring the Loaned Securities to UBS before the close
of business of Borrower on such Business Day.
3.2 UBS, as agent for Lender, may terminate a Loan on a termination
date established by notice given to Borrower prior to the close of business on a
Business Day. The termination date established by a termination notice given by
UBS to Borrower shall be a date no earlier than the standard settlement date for
trades of the Loaned Securities entered into on the date of such notice, which
date shall, unless Borrower, Lender and UBS agree to the contrary, be the third
Business Day following such notice.
4. RIGHTS OF BORROWER IN RESPECT OF THE LOANED SHARES.
4.1 The rights of Borrower in respect of Loaned Securities under
Section 6 of the Agency Securities Loan Agreement are limited to the extent that
Borrower shall not have any incidents of ownership or take any action with
respect to the Loaned Securities that would cause any Loaned Securities to
become "Excess Shares" under the articles of incorporation of Regency Centers
Corporation; PROVIDED, HOWEVER, that, to the extent required to prevent any
Loaned Securities to become "Excess Shares", Borrower shall have the right, upon
written consent of the Lender (which consent shall not be unreasonably withheld)
to assign its obligations under this Agreement to any entity with a credit
rating of AA- or above or to an affiliate of the Borrower without the prior
consent of the Lender; PROVIDED, FURTHER, that the Borrower may not make any
such assignment if immediately after giving effect to the proposed assignment,
there would be an Event of Default or Potential Event of Default of the Borrower
or such proposed assignee pursuant to the Confirmation.
5. MARK TO MARKET MARGIN.
5.1 For purposes of Section 8 of the Agency Securities Loan Agreement
and Sections 3(a) and 3(b) of the Client Agreement, the Market Value of the
Collateral and the Required Collateral Level shall be 102% of the Market Value
of the Loaned Securities, and shall be valued on an Account-by-Account basis as
contemplated by Section 8.4 of the Agency Securities Loan Agreement. Without the
prior written consent of Borrower, Lender will not permit the collateral to be
held other than in Lender's Client Account at UBS. Collateral shall consist only
of cash and shall be invested as specified by Lender and Borrower.
6. Forward Sale Agreement.
6.1 Notwithstanding anything in this Agreement and the Agency
Securities Loan Agreement to the contrary, Borrower, UBS and Lender hereby agree
and acknowledge that, pursuant to the terms of a Confirmation dated June 18,
2003 between Lender and Borrower (the "CONFIRMATION"), if Lender or Borrower
fails to perform its
obligation to return the Collateral or to deliver the Loaned Shares, as the case
may be, hereunder then Physical Settlement (as defined in the Confirmation)
shall apply and (a) Lender shall be deemed to have elected to satisfy its
obligation to deliver Shares under the Confirmation, in whole or in part, by
assigning to Borrower its right to receive delivery of an equal number of Shares
(or such lesser number as may then be subject to a loan) hereunder and (b)
Borrower shall be deemed to have elected to satisfy its payment obligation under
the Confirmation, in whole or in part, by assigning to Lender its right to the
return of Collateral hereunder in amount equal to the amount of such payment
obligation (or such amount as may then be held as Collateral hereunder).
6.2 Notwithstanding anything in the Agency Securities Loan Agreement
and this Agreement to the contrary, Borrower, UBS and Lender hereby agree and
acknowledge that, pursuant to the terms of the Confirmation, if Lender or
Borrower fails to perform its delivery or payment obligations, as the case may
be, under the Confirmation on the Settlement Date (as defined in the
Confirmation) then Physical Settlement (as defined in the Confirmation) shall
apply and (a) Lender shall be deemed to have elected to satisfy its obligation
to deliver Shares under the Confirmation, in whole or in part, by assigning to
Borrower its right to receive delivery of an equal number of Shares (or such
lesser number as may then be subject to a loan) hereunder and (b) Borrower shall
be deemed to have elected to satisfy its payment obligation under the
Confirmation, in whole or in part, by assigning to Lender its right to the
return of Collateral hereunder in amount equal to the amount of such payment
obligation (or such amount as may then be held as Collateral hereunder).
6.3 Notwithstanding anything in the Agency Securities Loan Agreement
and this Agreement to the contrary, if Physical Settlement (as defined in the
Confirmation) is elected under the Confirmation, then (a) Lender shall be deemed
to have elected to satisfy its obligation to deliver Shares under the
Confirmation, in whole or in part, by assigning to Borrower its right to receive
delivery of an equal number of Shares (or such lesser number as may then be
subject to a loan) hereunder and (b) Borrower shall be deemed to have elected to
satisfy its payment obligation under the Confirmation, in whole or in part, by
assigning to Lender its right to the return of Collateral hereunder in amount
equal to the amount of such payment obligation (or such amount as may then be
held as Collateral hereunder).
6.4 Notwithstanding anything in the Agency Securities Loan Agreement
and this Agreement to the contrary, Borrower, UBS and Lender hereby agree and
acknowledge the non-defaulting party in Section 6.1, 6.2 or 6.3 hereof shall not
be deemed to have made its respective election under clause (a) or clause (b)
unless, concurrently with the assignment by the non-defaulting party of the
right to receive delivery of Shares hereunder or the right to return of the
Collateral, as the case may be, the defaulting party fully performs its
obligation under the Confirmation to deliver Shares or to pay the Settlement
Amount (as defined in the Confirmation), as the case may be, to the extent that
the number of Loaned Shares is less than the number of Shares required to be
delivered under the
Confirmation or the amount of Collateral required to be returned is less than
the amount required to be paid under the Confirmation, as the case may be.
7. APPLICABLE LAW.
7.1 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be
performed wholly within such state, without reference to its conflicts of laws
principles or rules.
8. REPRESENTATION OF THE LENDER.
8.1 Lender hereby represents and warrants to Borrower that the
representations and warranties of Lender contained in Section 4(a) of the Client
Agreement are true and correct as of the date hereof (provided that Section
4(a)(iii) is subject to the rights of Borrower under the Confirmation) and shall
be deemed made and repeated for all purposes at and as of all times when any
Loan entered into under the Agency Securities Loan Agreement is outstanding.
9. TERMINATION.
9.1 Lender and UBS agree that they will not terminate the Client
Agreement prior to the Settlement Date specified in the Confirmation without the
prior written consent of Borrower.
10. DEFAULT.
10.1 In the event of any default by Borrower under any Loan, UBS shall
take action only in accordance with express instructions from Lender, Section
3(f) of the Client Agreement to the contrary notwithstanding.
11. COMPENSATION OF UBS.
11.1 The compensation of UBS under the Client Agreement shall be paid
by Lender and UBS is not authorized to collect any compensation from the
principal of the Collateral or that would affect the Cash Collateral Fee payable
to Borrower.
JPMORGAN CHASE BANK
By: /s/ STEPHEN E. GRAY
------------------------------------------
Name: Stephen E. Gray
Title: Managing Director
SECURITY CAPITAL SHOPPING MALL BUSINESS TRUST
By: /s/ PHILIP A. MINTZ
------------------------------------------
Name: Philip A. Mintz
Title: Vice President
UBS SECURITIES LLC
By: /s/ DENISE KARABOTS
------------------------------------------
Name: Denise Karabots
Title: Executive Director
EXHIBIT 43
EXECUTION VERSION 2
MASTER TERMS AND CONDITIONS FOR FORWARD TRANSACTIONS
BETWEEN CITIBANK, N.A. AND SECURITY CAPITAL SHOPPING MALL BUSINESS TRUST
The purpose of this Master Terms and Conditions for Forward
Transactions (the "MASTER CONFIRMATION"), dated as of June 18, 2003, is to set
forth certain terms and conditions for forward transactions that Security
Capital Shopping Mall Business Trust ("COUNTERPARTY") will enter into with
Citibank, N.A. ("Citibank"). Each such transaction (a "TRANSACTION") entered
into between Citibank and Counterparty that is to be subject to this Master
Confirmation shall be evidenced by a written confirmation substantially in the
form of Exhibit A hereto, with such modifications thereto as to which
Counterparty and Citibank mutually agree (a "CONFIRMATION"). This Master
Confirmation and each Confirmation together constitute a "Confirmation" as
referred to in the ISDA Agreement specified below.
This Master Confirmation and a Confirmation evidence a
complete binding agreement between you and us as to the terms of the Transaction
to which this Master Confirmation and such Confirmation relates. This Master
Confirmation and each Confirmation hereunder shall supplement, form a part of,
and be subject to an agreement in the form of the 1992 ISDA Master Agreement
(the "ISDA AGREEMENT") in the form published by the International Swaps and
Derivatives Association, Inc. ("ISDA"), as if we had executed an agreement in
such form (with a Schedule that had the provisions in Section 11 of this Master
Confirmation) on the date hereof. A copy of the ISDA Agreement has been, or
promptly after the date hereof will be, delivered to you.
The definitions and provisions contained in the 1996 ISDA
Equity Derivatives Definitions (the "DEFINITIONS") as published by ISDA are
incorporated into this Master Confirmation.
THIS MASTER CONFIRMATION WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO CHOICE
OF LAW DOCTRINE. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ALL MATTERS RELATING
HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN, AND ANY CLAIM OF
INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS.
1. In the event of any inconsistency between this Master
Confirmation, on the one hand, and the Definitions or the ISDA Agreement, on the
other hand, this Master Confirmation will control for the purpose of the
Transaction to which a Confirmation relates. In the event of any inconsistency
between the Definitions, the ISDA Agreement, and this Master Confirmation, on
the one hand, and a Confirmation, on the other hand, the Confirmation will
govern. With respect to a Transaction, capitalized terms used herein that are
not otherwise defined shall have the meaning assigned to them in the
Confirmation relating to such Transaction.
2. Each party will make each payment specified in this Master
Confirmation or a Confirmation as being payable by such party, not later than
the due date for value on that date in the place of the account specified below
or otherwise specified in writing, in freely transferable funds and in a manner
customary for payments in the required currency.
3. CONFIRMATIONS:
This Master Confirmation and the ISDA Agreement, together with
the Confirmation relating to a Transaction, shall constitute the written
agreement between Counterparty and Citibank with respect to such Transaction.
Each Transaction to which a Confirmation relates is a forward
transaction, the terms of which include:
GENERAL TERMS:
Trade Date: As provided in the relevant Confirmation.
Seller: Counterparty
Buyer: Citibank
Issuer: Regency Centers Corporation
Shares: The common stock of the Issuer (Symbol: "REG").
Number of Shares: As provided in the relevant Confirmation;
PROVIDED that, if the underwriters exercise their
option to purchase additional SynDECS under
Section 4(b) of the Underwriting Agreement, dated
June 18, 2003, in respect of SynDECS relating to
stock of the Issuer, the Number of Shares for the
Transactions outstanding hereunder shall be
increased by the number of SynDECS for which such
option was exercised, with such increase
allocated to the Transactions outstanding
hereunder based on the ratio of the Number of
Shares under a particular Transaction to the
Number of Shares under all such Transactions.
Forward Price: The Initial Forward Price, as provided in the
relevant Confirmation, plus the Forward Interest
Amount MINUS the Dividend Amount, subject to
adjustment as provided in "Cash Settlement
Alternative" below.
WHERE:
"FORWARD INTEREST AMOUNT" means interest on the
Initial Forward Price for the period from and
including the Trade Date to but excluding the
Settlement Date at the applicable Floating Rate,
compounded on each Reset Date and calculated on
an Actual/360 basis.
"DIVIDEND AMOUNT" means the sum of, for each
Relevant Dividend, such Relevant Dividend plus
interest thereon for the period from and
including the related dividend payment date to
but excluding the Settlement Date or Cash
Settlement Payment Date, as applicable, at the
applicable Floating Rate, compounded on each
2
Reset Date and calculated on an Actual/360 basis.
"RELEVANT DIVIDEND" means any cash dividend or
distribution (other than dividends or
distributions resulting in an adjustment pursuant
"Adjustments" below) to which a holder of a Share
would be entitled, if the applicable record date
occurs during the period from, and including, the
Trade Date to, but excluding, the Settlement Date
or Cash Settlement Payment Date, as applicable.
Floating Rate Option: USD-LIBOR-BBA Designated
Maturity:
(i) for the Forward Interest Amount,
three months; and
(ii) for the Dividend Amount, (x) for the
period from the related dividend payment
date until the next Reset Date, such
period (with Linear Interpolation
applicable) and (y) thereafter, three
months;
PROVIDED that (A) the Designated Maturity
for the period commencing on the Trade
Date shall be the number of days from and
including the Trade Date to but excluding
the Reset Date in October 2003 (with
Linear Interpolation applicable) and (B)
the Designated Maturity for the period
ending on the scheduled Settlement Date
shall be the number of days from and
including the final Reset Date (or, as
applicable, the related dividend payment
date) to but excluding the scheduled
Settlement Date (with Linear
Interpolation applicable).
Reset Dates: (i) The Trade Date and (ii) October
1, 2003 and each three month anniversary thereof,
in each case subject to adjustment according to
the Modified Following Business Day Convention.
Terms used in this "Forward Price" provision but
not otherwise defined have the meanings assigned
thereto in the 2000 ISDA Definitions.
Settlement Currency: USD
Exchange: New York Stock Exchange
Related Exchange(s): Each relevant futures and options exchange with
respect to the Shares.
Credit Support
Document: Upon execution of this Master Confirmation,
Counterparty shall deliver an executed copy of a
guaranty from General Electric Capital
Corporation in the form of Exhibit B. With
respect to Counterparty, General Electric Capital
Corporation shall be a
3
Credit Support Provider and such guaranty shall
be a Credit Support Document.
SETTLEMENT TERMS:
Physical Settlement: Settlement of a Transaction shall be by Physical
Settlement unless Counterparty properly elects
Cash Settlement in accordance with "Cash
Settlement Alternative" below.
If Physical Settlement is applicable, on the
Settlement Date, Citibank shall pay to
Counterparty an amount equal to the product of
the Forward Price and the Number of Shares and
Counterparty will deliver to Citibank a number of
Shares equal to the Number of Shares. Such
delivery will be made on a delivery versus
payment basis through the Clearance System. If a
Settlement Disruption Event prevents delivery on
that day, Section 6.2 of the Definitions shall
apply.
Settlement Date: As provided in the relevant Confirmation, or such
other date as the parties may agree.
Representation and
Agreement; Sections 6.8 and 6.10 of the Definitions shall
Default Interest: apply.
Cash Settlement
Alternative: Upon written notice to Citibank no more than 5,
and no less than 2, Exchange Business Days prior
to the Settlement Date, Counterparty may elect to
settle a Transaction on a cash basis (the "CASH
SETTLEMENT ALTERNATIVE"). Such election shall be
irrevocable.
If the Cash Settlement Alternative has been
properly elected:
(a) Citibank or an affiliate shall purchase a
number of Shares equal to the Number of Shares
over a period (the "PRICING PERIOD"), not to
exceed 45 Exchange Business Days, beginning on
the Settlement Date. Each day on which Citibank
or such affiliate purchases Shares is referred to
as a "PRICING DATE" and the "FINAL PRICE" for a
Pricing Date shall be the average execution price
(including any fees or commissions incurred in
connection with such purchases) paid by Citibank
or such affiliate to purchase Shares on such
Pricing Date in connection with the Cash
Settlement Alternative.
(b) the Forward Price for a Pricing Date shall be
the Forward Price (as defined above) plus
interest thereon, from and including the
Settlement Date to but excluding the related Cash
Settlement Payment Date, at the Federal Funds
Open Rate for such day, compounded on each
Business Day and calculated on a actual/360
basis.
4
WHERE:
"FEDERAL FUNDS OPEN RATE" means, with
respect to any day, the opening federal
funds rate quoted on Bloomberg Financial
Markets as of such day (or, if that day
is not a Business Day, the next preceding
Business Day); PROVIDED that if no such
rate appears on such Business Day, the
Calculation Agent shall determine the
rate in a commercially reasonable manner
from any publicly available source
(including any Federal Reserve Bank).
"BUSINESS DAY" means any day on which
commercial banks are open for general
business (including dealings in foreign
exchange and foreign currency deposits)
in New York City.
(c) on the third Exchange Business Day following
each Pricing Date (each, a "CASH SETTLEMENT
PAYMENT DATE"), Counterparty shall pay to
Citibank an amount of USD equal to (i) the Number
of Shares MULTIPLIED by (ii) the Final Price for
such Pricing Date MINUS the Forward Price for
such Pricing Date (or, if such calculation
results in a negative number, then Citibank will
pay to Counterparty the absolute value of such
calculation).
ADJUSTMENTS:
Method of Adjustment: Calculation Agent Adjustment, it being understood
that, if the Potential Adjustment Event results
in holders of Shares receiving assets other than
Shares, cash or Reported Securities, the
adjustment made by the Calculation Agent may
include payment by the Counterparty of cash equal
to the value of the assets to which a holder of
the Number of Shares would be entitled (such
value determined by the Calculation Agent in a
commercially reasonable manner on the date of
distribution of such assets to holders of Shares
or, if later, the date such assets cease to be
Reported Securities) plus interest thereon at the
prevailing swap rate for the period from such
date through the Settlement Date or Cash
Settlement Payment Date, as applicable.
"REPORTED SECURITIES" means securities that (1)
are (a) listed on a United States national
securities exchange, (b) reported on a United
States national securities system subject to last
sale reporting, (c) traded in the over the
counter market and reported on the National
Quotation Bureau or similar organization, or (d)
for which bid and ask prices are available from
at least three nationally recognized investment
banking firms selected by the Calculation Agent,
and (2) are either (a) perpetual equity
securities or (b) non perpetual equity or debt
securities with a stated maturity after the
maturity date of the SynDECS.
5
EXTRAORDINARY EVENTS:
Consequences of Merger Events (in each case, as if the Transaction were
a Share Swap Transaction):
(a) Share-for-Share: Alternative Obligation.
(b) Share-for-Other: Alternative Obligation.
(c) Share-for-Combined: Alternative Obligation.
Notwithstanding the definition of Alternative
Obligation, if the Merger Event results in
holders of Shares receiving assets other than
cash or Reported Securities, in lieu of
delivering such assets (or valuing such assets
as provided in "Cash Settlement Alternative"
above), Counterparty shall pay cash equal to the
value of the assets to which a holder of the
Number of Shares would be entitled (such value
determined by the Calculation Agent in a
commercially reasonable manner on the date of
distribution of such assets to holders of Shares
or, if later, the date such assets cease to be
Reported Securities) plus interest thereon at
the prevailing swap rate for the period from
such date through the Settlement Date or Cash
Settlement Payment Date, as applicable.
Nationalization,
Insolvency or
De-Listing: Negotiated Close-out.
"DE-LISTING EVENT" means that the Shares cease
to be listed on or quoted by any of the New York
Stock Exchange, the American Stock Exchange or
the NASDAQ National Market (or their respective
successors) for any reason other than a Merger
Event. For purposes of a De-Listing Event, the
Announcement Date shall be deemed to be the date
that the De-Listing Event first occurs (as
determined by the Calculation Agent).
4. CALCULATION AGENT:
Citibank is the Calculation Agent and, after good faith
consultation with Counterparty, shall make all calculations, adjustments and
determinations required pursuant to a Transaction in good faith and a
commercially reasonable manner.
5. SECURITIES LAW REPRESENTATIONS AND AGREEMENTS:
Counterparty hereby represents, warrants and agrees in favor
of Citibank on the Trade Date with respect to the Shares it is holding on the
Trade Date:
(a) The Shares are "restricted securities" within the meaning
of Rule 144 under the Securities Act of 1933, as amended (the "SECURITIES ACT").
6
(b) Counterparty's "holding period" for the Shares, determined
in accordance with Rule 144, commenced more than two years prior to the date
hereof.
(c) Counterparty understands and will comply with
Counterparty's responsibilities under applicable securities laws in connection
with the Transactions including, but not limited to, the provisions of Rule 144
and the filing requirements (to the extent applicable) of Sections 13 and 16 of
the Securities Exchange Act of 1934.
6. ADDITIONAL REPRESENTATIONS AND AGREEMENTS:
(a) In connection with this Master Confirmation, each
Confirmation, each Transaction to which a Confirmation relates and any other
documentation relating to the ISDA Agreement, each party represents and
acknowledges to the other party on the Trade Date of each Transaction that:
(i) such party is acting as principal for such
party's own account and not as agent when entering into such
Transaction;
(ii) such party has sufficient knowledge and
expertise to enter into such Transaction and such party is entering
into such Transaction in reliance upon such tax, accounting,
regulatory, legal, and financial advice as such party deems necessary
and not upon any view expressed by the other. Such party has made such
party's own independent decision to enter into such Transaction, is
acting at arm's length and is not relying on any communication (written
or oral) of the other party as a recommendation or investment advice
regarding such Transaction. Such party has the capability to evaluate
and understand (on such party's own behalf or through independent
professional advice), and does understand, the terms, conditions and
risks of such Transaction and is willing to accept those terms and
conditions and to assume (financially and otherwise) those risks. Such
party acknowledges and agrees that the other party is not acting as a
fiduciary or advisor to such party in connection with such Transaction.
Such party is not entering into such Transaction for purposes of
speculation; and
(iii) such party is an "accredited investor" as
defined in Section 2(a)(15)(ii) of the Securities Act and an "eligible
contract participant" as such term is defined in the Commodity Exchange
Act, as amended.
(b) In connection with this Master Confirmation, each
Confirmation, each Transaction to which a Confirmation relates and any other
documentation relating to the ISDA Agreement, Counterparty represents and
acknowledges to Citibank on the Trade Date of each Transaction that:
(i) Counterparty understands no obligations of
Citibank to Counterparty hereunder will be entitled to the benefit of
deposit insurance and that such obligations will not be guaranteed by
any affiliate of Citibank or any governmental agency;
(ii) Counterparty's financial condition is such that
Counterparty has no need for liquidity with respect to Counterparty's
investment in such Transaction and no need to dispose of any portion
thereof to satisfy any existing or contemplated undertaking or
indebtedness. Counterparty's investments in and liabilities in respect
of such Transaction, which Counterparty understands are not readily
marketable, is not disproportionate to Counterparty's net worth, and
Counterparty is able to bear any loss in connection with such
Transaction, including the loss of Counterparty's entire investment in
such Transaction;
7
(iii) COUNTERPARTY UNDERSTANDS THAT SUCH TRANSACTION
IS SUBJECT TO COMPLEX RISKS WHICH MAY ARISE WITHOUT WARNING AND MAY AT
TIMES BE VOLATILE AND THAT LOSSES MAY OCCUR QUICKLY AND IN
UNANTICIPATED MAGNITUDE AND IS WILLING TO ACCEPT SUCH TERMS AND
CONDITIONS AND ASSUME (FINANCIALLY AND OTHERWISE) SUCH RISKS;
(iv) Neither Counterparty nor any of Counterparty's
affiliates is in possession of any material non-public information
concerning the Issuer. "MATERIAL" information for these purposes is any
information to which an investor would reasonably attach importance in
reaching a decision to buy, sell or hold securities of the Issuer;
(v) Counterparty is entering into such Transaction
for Counterparty's own account and not with a view to transfer, resale
or distribution and understands that such Transaction may involve the
purchase or sale of a security as defined in the Securities Act and the
securities laws of certain states, that any such security has not been
registered under the Securities Act or the securities laws of any state
and, therefore, may not be sold, pledged, hypothecated, transferred or
otherwise disposed of unless such security is registered under the
Securities Act and any applicable state securities law, or an exemption
from registration is available;
(vi) Counterparty is aware and acknowledges that
Citibank, its affiliates or any entity with which Citibank hedges such
Transaction may from time to time take positions in instruments that
are identical or economically related to such Transaction or the Shares
or have an investment banking or other commercial relationship with the
Issuer. In addition, Counterparty acknowledges that the proprietary
trading and other activities and transactions of Citibank, its
affiliates or any entity with which Citibank hedges such Transaction,
including purchases and sales of the Shares in connection with, or in
anticipation of, such Transaction, may affect the trading price of the
Shares;
(vii) Counterparty will immediately notify Citibank
of the occurrence of an Event of Default under the ISDA Agreement where
Counterparty is the Defaulting Party, or the occurrence of any event
that with the giving of notice, the lapse of time or both would be such
an Event of Default; and
(viii) Counterparty was not or will not be insolvent
at the time any Transaction hereunder was consummated, and was not or
will not be rendered insolvent or will not be insolvent as a result
thereof. At the time of any transfer to or for the benefit of Citibank,
Counterparty did not intend or will not intend to incur, and did not
incur or will not incur, debts that were beyond the ability of
Counterparty to pay as they mature.
7. ACKNOWLEDGMENTS:
The parties hereto intend for:
(a) Each Transaction hereunder to be a "securities contract"
and a "swap agreement" as defined in the Bankruptcy Code (Title 11 of the United
States Code) (the "BANKRUPTCY CODE"), and the parties hereto are entitled to the
protections afforded by, among other Sections, Sections 362(b)(6), 555 and 560
of the Bankruptcy Code.
(b) A party's right to liquidate a Transaction and to exercise
any other remedies upon the occurrence of any Event of Default under the ISDA
Agreement with respect to the other party to constitute a "contractual right" as
described in the Bankruptcy Code.
8
(c) Any cash, securities or other property provided as
performance assurance, credit support or collateral with respect to a
Transaction to constitute "margin payments" and "transfers" under a "swap
agreement" as defined in the Bankruptcy Code.
(d) All payments for, under or in connection with a
Transaction, all payments for the Shares and the transfer of such Shares to
constitute "settlement payments" and "transfers" under a "swap agreement" as
defined in the Bankruptcy Code.
8. INDEMNIFICATION:
Counterparty agrees to indemnify and hold harmless Citibank,
its Affiliates and its assignees and their respective directors, officers,
employees, agents and controlling persons (Citibank and each such person being
an "INDEMNIFIED PARTY") from and against any and all losses, claims, damages and
liabilities, joint or several, to which such Indemnified Party may become
subject (including in connection with any hedge by UBS AG, London Branch with
Citibank of a transaction governed by the Master Terms and Conditions for
Forward Transactions, dated as of June 18, 2003, between Counterparty and UBS
AG, London Branch), and relating to or arising out of any misrepresentation by
Counterparty relating to the representation set forth in Section 6(b)(iv) of
this Master Confirmation or allegation by a third party that Counterparty acted
or failed to act in a manner that, as alleged, would have constituted such a
misrepresentation, and will reimburse any Indemnified Party for all expenses
(including reasonable counsel fees and expenses) as they are incurred in
connection with the investigation of, preparation for or defense or settlement
of any pending or threatened claim or any action, suit or proceeding arising
therefrom, whether or not such Indemnified Party is a party thereto and whether
or not such claim, action, suit or proceeding is initiated or brought by or on
behalf of Counterparty. Counterparty will not be liable under the foregoing
indemnification provision to the extent that any loss, claim, damage, liability
or expense is found in a nonappealable judgment by a court of competent
jurisdiction to have resulted from Citibank's breach of a material term of this
Master Confirmation, willful misconduct or gross negligence. If for any reason
the foregoing indemnification is unavailable to any Indemnified Party or
insufficient to hold harmless any Indemnified Party, then Counterparty shall
contribute, to the maximum extent permitted by law (but only to the extent that
such harm was not caused by Citibank's breach of a material term of this Master
Confirmation, willful misconduct or gross negligence), to the amount paid or
payable by the Indemnified Party as a result of such loss, claim, damage or
liability. Counterparty also agrees that no Indemnified Party shall have any
liability to Counterparty or any person asserting claims on behalf of or in
right of Counterparty in connection with or as a result of any matter referred
to in this Master Confirmation or the ISDA Agreement except to the extent that
any losses, claims, damages, liabilities or expenses incurred by Counterparty
result from the breach of a term of this Master Confirmation, or the Indemnified
Party's gross negligence or willful misconduct. The provisions of this Section 8
shall survive completion of the Transactions contemplated by this Master
Confirmation and any assignment and delegation pursuant to Section 10(b) of this
Master Confirmation and shall inure to the benefit of any permitted assignee of
Citibank.
9. EARLY UNWIND:
On any Exchange Business Day, Counterparty (i) may notify
Citibank of its desire to effect a settlement with respect to any portion or all
of a Transaction as specified in such notice (an "EARLY UNWIND") and (ii) shall
include in such notice (1) the date of such Early Unwind (the "EARLY UNWIND
DATE"), with such date being before the scheduled Settlement Date and not less
than three Exchange Business Days after the date Counterparty so notifies
Citibank and (2) an indication of its settlement election pursuant to the
provisions of "Settlement Terms". The Early Unwind Date shall be deemed the
Settlement Date. In the event of an Early Unwind, the Calculation Agent shall
adjust the terms of the relevant Transaction appropriately to reflect any
additional funding costs incurred, or any reduction in
9
funding costs received, by Citibank by virtue of the settlement of an Early
Unwind occurring on other than a Reset Date.
10. OTHER PROVISIONS:
(a) EARLY TERMINATION. The parties agree that for purposes of
Section 6(e) of the ISDA Agreement, Second Method and Loss will apply to each
Transaction under this Master Confirmation.
(b) TRANSFER.
(i) Notwithstanding any provision of the ISDA Agreement to the
contrary, Citibank shall be entitled to assign its rights and obligations
hereunder to make or receive cash payments and transfer of Shares and other
related rights to one or more entities that are wholly-owned, directly or
indirectly, by Citigroup Inc., or any successor thereto (each, a "CITIBANK
AFFILIATE"); PROVIDED that Counterparty shall have recourse to Citibank in the
event of the failure by a Citibank Affiliate to perform any of such obligations
hereunder. Notwithstanding the foregoing, recourse to Citibank shall be limited
to recoupment of Counterparty's monetary damages and Counterparty hereby waives
any right to seek specific performance by Citibank of its obligations hereunder.
Such failure after any applicable grace period shall be an Additional
Termination Event with the Transaction to which the failure relates as the sole
Affected Transaction and Citibank as the sole Affected Party.
(ii) Citibank may also assign or transfer any of its rights
and duties hereunder or delegate its obligations hereunder to the extent
necessary to avoid any of the Shares subject to delivery to Citibank pursuant to
a Transaction being treated as "Excess Shares" under the articles of
incorporation of the Issuer (or, if the number of "Excess Shares" is fewer than
1,000,000 Shares, to the extent of 1,000,000 Shares) to any entity not
affiliated with Citibank with a credit rating at the time of such assignment (A)
of AA- or above by a nationally recognized statistical rating organization (as
defined in the Securities Exchange Act of 1934) or (B) of at least A1 by Moody's
and of at least A by Standard & Poor's so long as such entity enters into a
collateral arrangement satisfying the policies of Counterparty's Credit Support
Provider at the time of such assignment, in each case with the consent of
Counterparty which consent shall not be unreasonably withheld.
(c) CONSENT TO RECORDING. Each party (i) consents to the
recording of the telephone conversations of trading and marketing personnel of
the parties and their affiliates in connection with this Master Confirmation and
(ii) agrees to obtain any necessary consent of, and give notice of such
recording to, such personnel of such party and such party's affiliates.
(d) SEVERABILITY; ILLEGALITY. If compliance by either party
with any provision of a Transaction would be unenforceable or illegal, (i) the
parties shall negotiate in good faith to resolve such unenforceability or
illegality in a manner that preserves the economic benefits of the transactions
contemplated hereby and (ii) the other provisions of such Transaction shall not
be invalidated, but shall remain in full force and effect.
(e) WAIVER OF TRIAL BY JURY. EACH OF COUNTERPARTY AND CITIBANK
HEREBY IRREVOCABLY WAIVES (ON SUCH PARTY'S OWN BEHALF AND, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ON BEHALF OF SUCH PARTY'S STOCKHOLDERS) ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS MASTER
CONFIRMATION OR THE ACTIONS OF CITIBANK OR ITS AFFILIATES IN THE NEGOTIATION,
PERFORMANCE OR ENFORCEMENT HEREOF.
10
(f) CONFIDENTIALITY. Notwithstanding any other provision in
this Master Confirmation, the Counterparty and Citibank hereby agree that the
Counterparty (and each employee, representative, or other agent of the
Counterparty) may disclose to any and all persons, without limitation of any
kind, the U.S. tax treatment and U.S. tax structure of the transaction and all
materials of any kind (including opinions or other tax analyses) that are
provided to the Counterparty relating to such U.S. tax treatment and U.S. tax
structure, other than any information for which nondisclosure is reasonably
necessary in order to comply with applicable securities laws.
11. SCHEDULE PROVISIONS:
(a) The "CROSS DEFAULT" provisions of Section 5(a)(vi) of the ISDA
Agreement will not apply to Citibank and will not apply to
Counterparty.
(b) ADDITIONAL TERMINATION EVENT will apply. The following shall constitute
Additional Termination Events with respect to the ISDA Agreement:
CREDIT EVENT. (a) If at any time the rating issued by Standard & Poor's
Corporation ("S&P") or Moody's Investors Service, Inc. ("Moody's") with
respect to the long-term unsecured, unsubordinated debt securities
("Debt Securities") of Counterparty's Credit Support Provider or of
Citibank (in which case Counterparty or Citibank, as the case may be,
will be the Affected Party) is below A- in the case of S&P or is below
A3 in the case of Moody's (a "Credit Event"), then the other party (the
Non-Affected Party) will have the right, (i) by written notice, to
request the Affected Party to transfer all its rights and obligations
under this Agreement and all Affected Transactions within 30 days to
another party acceptable to the Non-Affected Party the financial
program or Debt Securities of such party which are rated AA- or above
in the case of S&P and Aa3 or above in the case of Moody's, (ii) to
terminate this Agreement by giving notice of an Early Termination Date
in respect of all Affected Transactions or (iii) to take neither of the
actions contained in subclauses (i) and (ii) of this paragraph (a), in
which event such failure or delay on the part of the Non-Affected Party
in exercising any of its rights contained in subclauses (i) and (ii) of
this paragraph (a) shall not operate as a waiver thereof nor preclude
any further exercise of such rights. In the event a transfer as
requested by the Non-Affected Party pursuant to subclause (i) of this
paragraph (a) has not been effected with respect to the ISDA Agreement
and all Affected Transactions within 30 days, then the Non-Affected
Party may, provided the Credit Event is still continuing, designate a
day not earlier than the day such notice is effective under the ISDA
Agreement as an Early Termination Date in respect of all Affected
Transactions.
(b) If one of the foregoing credit rating agencies ceases to
be in the business of rating Debt Securities and such business is not
continued by a successor or assign of such agency (the "Discontinued
Agency"), Citibank and Counterparty shall jointly (i) select a
nationally-recognized credit rating agency in substitution thereof and
(ii) agree on the rating level issued by such substitute agency that is
equivalent to the ratings specified herein of the Discontinued Agency,
whereupon such substitute agency and equivalent rating shall replace
the Discontinued Agency and the rating level thereof for the purposes
of the ISDA Agreement. If at any time all of the agencies specified
herein with respect to a party have become Discontinued Agencies and
Citibank and Counterparty have not previously agreed in good faith on
at least one agency and equivalent rating in substitution for a
Discontinued Agency and the applicable rating thereof, the Credit Event
provisions of paragraph (a) shall cease to apply to the parties.
BREACH OF WARRANTY. Any Warranty made or deemed to have been made or
repeated by any party or any Credit Support Provider of such party (if
applicable) in this Agreement or any Credit Support Document (if
applicable) proves to have been incorrect when made or repeated or
11
deemed to have been made or repeated (in which case the party that made
or is deemed to have made or repeated such Warranty shall be the
Affected Party).
(c) PROVISION OF FINANCIAL INFORMATION. For purposes of Section 4(a)(ii) of
the ISDA Agreement, each party agrees to deliver financial information,
described as follows:
(i) Upon request of the other party and within a reasonable
time after public availability, each party agrees to furnish to the
other party a copy of the annual report of such party (or, in the case
of Counterparty, of Counterparty's Credit Support Provider) containing
audited consolidated financial statements for such fiscal year
certified by independent certified public accountants and prepared in
accordance with generally accepted accounting principles ("GAAP"), or,
in lieu thereof, a copy of such party's Form 10-K as filed with the
Securities and Exchange Commission.
(ii) Upon request of the other party and within a reasonable
time after public availability, each party agrees, with respect to the
first three quarters of its fiscal year, to furnish to the other party
a copy of the unaudited consolidated financial statements of such party
(or, in the case of Counterparty, of Counterparty's Credit Support
Provider) for its most recent fiscal quarter prepared in accordance
with GAAP on a basis consistent with that of the annual financial
statements of such party, or, in lieu thereof, a copy of such party's
Form 10-Q as filed with the Securities and Exchange Commission.
(d) ADDITIONAL TAX PROVISIONS. (i) The definition of "Indemnifiable Tax" in
Section 14 of the ISDA Agreement is modified by adding the following at
the end thereof:
Notwithstanding the foregoing, "Indemnifiable Tax" also means
any Tax imposed in respect of a payment under this Agreement
by reason of a Change in Tax Law by a government or taxing
authority of a Relevant Jurisdiction of the party making such
payment, unless the other party is incorporated, organized,
managed and controlled or considered to have its seat in such
jurisdiction, or is acting for purposes of this Agreement
through a branch or office located in such jurisdiction.
(ii) Section 4(a)(iii) of the ISDA Agreement is modified by
deleting the word "materially" in the sixth line thereof.
(e) SETTLEMENT AMOUNT. The definition of "Settlement Amount" in Section 14
of the ISDA Agreement is hereby amended by deleting in the third and
fourth lines of subparagraph (b) thereof the words "or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result".
(f) ADDITIONAL REPRESENTATIONS. Section 3 of the ISDA Agreement is hereby
amended by adding the following additional subsections:
(g) ELIGIBLE CONTRACT PARTICIPANT. It is an "eligible
contract participant" as defined in Section 1a(12) of
the Commodity Exchange Act, as amended.
(h) FDICIA/REGULATION EE. In addition to the foregoing
representations, Citibank represents to Counterparty
either that (1) it is a Financial Institution as
defined in Section 402(9) of the Federal Deposit
Insurance Corporation Improvement Act of 1991, or (2)
(A) it will engage in Financial Contracts (as defined
in Section 2 of Regulation EE of the Federal Reserve
Board (12 C.F.R. ss.231.2)) as a counterparty on both
sides
12
of one or more Financial Markets (as defined in
Section 2 of Regulation EE of the Federal Reserve
Board (12 C.F.R. ss.231.2)), and (B) that, on the
date of this Agreement, it meets at least one of the
tests set forth in Section 3(a)(1)-(2) of Regulation
EE of the Federal Reserve Board (12
C.F.R.ss.231.3(a)(1)-(2)). The representation
contained in clause (1) or clause 2(A) of this
paragraph (h), as the case may be, will be deemed to
be repeated by Citibank on each date on which a
Transaction is entered into.
(g) WARRANTIES REGARDING RELATIONSHIP BETWEEN PARTIES.
(i) The definition of "AFFECTED TRANSACTIONS" in Section 14 of the
ISDA Agreement is modified by adding the following immediately
preceding the words "an Illegality" in the first line thereof:
a breach of any Warranty made pursuant to this
Agreement,
(ii) Section 14 of the ISDA Agreement is modified by adding the
following new defined term in its appropriate alphabetical
location:
"WARRANTY" has the meaning specified in clause
(g)(iii) below.
(iii) WARRANTIES. The following warranties (the "Warranties") are
made by one or both of the parties to this Agreement, as
specified below, or, if applicable, any Credit Support
Provider of any such party or any Specified Entity of any such
party, to the other party (which Warranties will be deemed to
be repeated by each such party on each date on which a
Transaction is entered into):
(A) STATUS OF PARTIES. Each party warrants to the other
party that (1) it is acting for its own account in
respect of all Transactions governed by this
Agreement, (2) the other party is not acting as a
fiduciary for it in respect of any such Transaction,
and (3) it is not relying on any communication
(whether written or oral) of the other party as
investment advice or as a recommendation to enter
into any transaction.
(B) DISCLOSURE. Each party warrants to the other party
that written information provided to the other party
regarding any Transaction governed by this Agreement
shall not contain any untrue statement of a material
fact.
12. NOTICE INFORMATION:
If to Counterparty:
Security Capital Shopping Mall Business Trust
c/o GE Capital Real Estate
292 Long Ridge Road
Stamford, CT 06927
Attention: Philip Mintz
Telecopier: 203-585-0179
13
with copies to:
GE Capital Real Estate
292 Long Ridge Road
Stamford, CT 06927
Attention: Legal Operation/Security Capital
Telecopier: 203-357-6768
and
General Electric Capital Corporation
260 Long Ridge Road
Stamford, CT 06927
Attention: Senior Vice President - Corporate Treasury
and Global Funding Operation
Telecopier: 203-357-4975
If to Citibank:
Corporate Equity Derivatives
Attn: William Ortner
390 Greenwich Street
New York, NY 10013
Phone: 212-723-7355
Fax: 212-723-8328
14
Yours sincerely,
CITIBANK, N.A.
By: /s/ WILLIAM G. ORTNER
----------------------------
Name: William G. Ortner
Authorized Representative
Confirmed as of the date first above written:
SECURITY CAPITAL SHOPPING MALL BUSINESS TRUST
By: /s/ PHILIP A. MINTZ
------------------------------
Name: Philip A. Mintz
Title: Vice President
15
EXHIBIT 43
EXHIBIT A
FORM OF
FORWARD TRANSACTION
CONFIRMATION
CONFIRMATION
Date: _________________
To: Security Capital Shopping Mall Business Trust ("Counterparty")
c/o GE Capital Real Estate
292 Long Ridge Road
Stamford, CT 06927
Telefax No.: 203-585-0179
Attention: Philip Mintz
From: Citibank, N.A. ("Citibank")
Telefax No.: 212-615-8985
Transaction Reference No.: _________________
The purpose of this communication is to set forth the terms
and conditions of the above-referenced Transaction entered into on the Trade
Date specified below (the "TRANSACTION") between you and us. This communication,
together with the Master Confirmation (as defined below), constitutes a
"Confirmation" as referred to in the Master Confirmation.
1. The definitions and provisions contained in the 1996 ISDA
Equity Derivatives Definitions (the "DEFINITIONS") as published by the
International Swaps and Derivatives Association, Inc. and in the Master
Confirmation are incorporated into this Confirmation. In the event of any
inconsistency between those definitions and provisions and this Confirmation,
this Confirmation will govern.
2. This Confirmation supplements, forms a part of, and is
subject to the Master Terms and Conditions for Forward Transactions dated as of
June 18, 2003 (the "MASTER CONFIRMATION") between you and us. All provisions
contained in the ISDA Agreement (as modified and as defined in the Master
Confirmation) shall govern this Confirmation except as expressly modified below.
3. The particular Transaction to which this Confirmation
relates is a forward transaction, the terms of which are as follows:
Trade Date: [June 24, 2003]
Number of Shares: [3,000,000]
Initial Forward Price: [ ]
Settlement Date: [April 1, 2004]
Counterparty hereby agrees (a) to check this Confirmation
carefully and immediately upon receipt so that errors or discrepancies can be
promptly identified and rectified and (b) to confirm that the foregoing
correctly sets forth the terms of the agreement between us with respect to the
particular Transaction to which this Confirmation relates by manually signing
this Confirmation and providing any other information requested herein or in the
Master Confirmation and immediately sending a facsimile transmission of an
executed copy to Confirmation Unit 212-615-8985, with an executed copy sent to
Citibank, N.A., 333 West 34th Street, 2nd Floor, New York, New York 10001,
Attention: Confirmation Unit.
Yours sincerely,
CITIBANK, N.A.
By:
------------------------
Name:
Authorized Representative
Confirmed as of the date first above written:
SECURITY CAPITAL SHOPPING MALL BUSINESS TRUST
By:
---------------------------------------
Name:
Title:
2
EXHIBIT B
FORM OF
GECC GUARANTY
GUARANTY
GUARANTY (the "Guaranty"), dated as of June 18, 2003 by GENERAL
ELECTRIC CAPITAL CORPORATION, a Delaware corporation ("GE Capital") in favor of
Citibank, N.A. (the "Counterparty").
RECITALS
WHEREAS, the Counterparty has entered into a Master Terms and
Conditions for Forward Transactions, dated as of June 18, 2003 (together with
the ISDA Master Agreement referenced therein and the Confirmations thereunder,
the "Agreement"), with Security Capital Shopping Mall Business Trust (the
"Subsidiary") providing, among other things, for the Subsidiary to make certain
payments and/or deliveries to Counterparty in connection with certain swaps,
forward contracts or other derivative transactions (the "Transactions");
WHEREAS, the Counterparty has requested GE Capital, as the parent of
the Subsidiary, to provide a guaranty to the Counterparty on the terms and
conditions hereinafter provided; and
WHEREAS, GE Capital is willing to enter into this Guaranty to induce
the Counterparty to enter into the Agreement with the Subsidiary;
NOW, THEREFORE, GE Capital hereby agrees:
SECTION 1. GUARANTY BY GE CAPITAL. (a) From and after the date hereof,
GE Capital hereby irrevocably and unconditionally guarantees the due and
punctual payment of all amounts payable by the Subsidiary to the Counterparty
pursuant to the terms of the Agreement when the same shall become due and
payable, whether on scheduled payment dates or otherwise, in each case after any
applicable grace periods or notice requirements; PROVIDED, HOWEVER, that GE
Capital shall not be liable to make any payment until two Business Days (as used
herein, a "Business Day" shall refer to a day other than a Saturday or a Sunday
on which commercial banks are open for business in the City of New York, United
States of America) following receipt by GE Capital of written notice from the
Counterparty that a payment is due thereunder (the "Notice Requirement"). GE
Capital hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Agreement; any
change in or amendment thereto, the absence of any action to enforce the same,
any waiver or consent by the Counterparty with respect to any provision thereof;
the recovery of any judgment against the Subsidiary or any action to enforce the
same; or any other circumstances which may otherwise constitute a legal or
equitable discharge or defense of a guarantor; provided, however, that nothing
contained herein shall be constituted to be a waiver by GE Capital of the Notice
Requirement with respect to the Agreement and the obligations evidenced thereby
or hereby. GE Capital covenants that this Guaranty will not be discharged except
by complete performance of the obligations contained in the Agreement and in
this Guaranty.
(b) GE Capital shall be subrogated to all rights of the Counterparty in
respect of any amounts paid by GE Capital pursuant to the provisions of this
Guaranty; PROVIDED, HOWEVER, that GE Capital shall be entitled to enforce, or to
receive any payments arising out of or based upon, such right of subrogation
with respect to any Transaction only after the payment of all amounts owed by
the Subsidiary to the Counterparty with respect to such Transaction have been
paid in full.
(c) This Guaranty shall continue to be effective or reinstated, as the
case may be, if at any time any payment made by the Subsidiary to the
Counterparty with respect to a Transaction or pursuant to the terms of the
Agreement is rescinded or must otherwise be returned by the Counterparty upon
the insolvency, bankruptcy or reorganization by GE Capital, the Subsidiary or
otherwise, all as though such payment had not been made.
MISCELLANEOUS
2.1. NOTICES. All notices to GE Capital under this Guaranty and copies of all
notices of payment failure or other breaches by the Subsidiary of the Agreement
sent to the Subsidiary under the Agreement shall, until GE Capital furnishes
written notice to the contrary, be mailed or delivered to GE Capital at 201 High
Ridge Road, Stamford, Connecticut 06927-9400, and directed to the attention of
the Senior Vice President-Corporate Treasury and Global Funding Operation of GE
Capital.
2.2. GOVERNING LAW. This Guaranty shall be construed and enforced in accordance
with, and governed by, the laws of the State of New York, United States of
America. GE Capital hereby irrevocably consents to, for the purposes of any
proceeding arising out of this Guaranty, the exclusive jurisdiction of the
courts of the State of New York and the United States District Court located in
the borough of Manhattan in New York City.
2.3. INTERPRETATION. The headings of the sections and other subdivisions of this
Guaranty are inserted for convenience only and shall not be deemed to constitute
a part hereof.
2.4. ATTORNEY'S COST. GE Capital agrees to pay all reasonable attorney's fees
and disbursements and all other reasonable and actual costs and expenses which
may be incurred by the Counterparty in the enforcement of this Guaranty of the
Agreement.
2.5. NO SET-OFF. The Counterparty shall be deemed to have waived any right to
set-off, combine, consolidate, or otherwise appropriate and apply, any
indebtedness at any time held or owing by the Counterparty against, or on
account of, any obligations or liabilities of GE Capital under this Guaranty. In
addition, GE Capital agrees to waive any right to set-off, combine, consolidate,
or otherwise appropriate and apply any obligations or liabilities of GE Capital
under this Guaranty against, or on account of, any indebtedness at any time held
or owing by the Counterparty.
2.6. CURRENCY OF PAYMENT. Any payment to be made by GE Capital shall be made in
the same currency as designated for payment in the Agreement and such
designation of the currency of payment is of the essence.
2.7. TRANSFER. Neither this Guaranty nor any interest or obligation in or under
this Guaranty may be transferred (whether by way of security or otherwise) by GE
Capital or the Counterparty without the prior written consent of the other,
except that the Counterparty may, without the consent of GE Capital, transfer
its interest in this Guaranty to any person or entity to which any interest or
obligation in or under the Agreement or any Transaction is transferred in a
manner that is not inconsistent with the Agreement.
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
--------------------------------
Vice President
2
ACKNOWLEDGEMENT AND AGREEMENT
Citibank, N.A. hereby acknowledges and consents to the provisions of the
foregoing Guaranty.
CITIBANK, N.A.
By:
-------------------------------
Title:
3
EXHIBIT 43
EXECUTION VERSION
CONFIRMATION
Date: June 24, 2003
To: Security Capital Shopping Mall Business Trust ("Counterparty")
c/o GE Capital Real Estate
292 Long Ridge Road
Stamford, CT 06927
Telefax No.: 203-585-0179
Attention: Philip Mintz
From: Citibank, N.A. ("Citibank")
Telefax No.: 212-615-8985
Transaction Reference No.: E03-01169
The purpose of this communication is to set forth the terms
and conditions of the above-referenced Transaction entered into on the Trade
Date specified below (the "TRANSACTION") between you and us. This communication,
together with the Master Confirmation (as defined below), constitutes a
"Confirmation" as referred to in the Master Confirmation.
1. The definitions and provisions contained in the 1996 ISDA
Equity Derivatives Definitions (the "DEFINITIONS") as published by the
International Swaps and Derivatives Association, Inc. and in the Master
Confirmation are incorporated into this Confirmation. In the event of any
inconsistency between those definitions and provisions and this Confirmation,
this Confirmation will govern.
2. This Confirmation supplements, forms a part of, and is
subject to the Master Terms and Conditions for Forward Transactions dated as of
June 18, 2003 (the "MASTER CONFIRMATION") between you and us. All provisions
contained in the ISDA Agreement (as modified and as defined in the Master
Confirmation) shall govern this Confirmation except as expressly modified below.
3. The particular Transaction to which this Confirmation
relates is a forward transaction, the terms of which are as follows:
Trade Date: June 24, 2003
Number of Shares: 3,000,000. The parties acknowledge
that the underwriters have exercised
their option to purchase additional
SynDECS and, accordingly, the Number
of Shares has been increased to
4,080,000.
Initial Forward Price: 30.92
Settlement Date: April 1, 2004
Counterparty hereby agrees (a) to check this Confirmation
carefully and immediately upon receipt so that errors or discrepancies can be
promptly identified and rectified and (b) to confirm that the foregoing
correctly sets forth the terms of the agreement between us with respect to the
particular Transaction to which this Confirmation relates by manually signing
this Confirmation and providing any other information requested herein or in the
Master Confirmation and immediately sending a facsimile transmission of an
executed copy to Confirmation Unit 212-615-8985, with an executed copy sent to
Citibank, N.A., 333 West 34th Street, 2nd Floor, New York, New York 10001,
Attention: Confirmation Unit.
Yours sincerely,
CITIBANK, N.A.
By: /s/ WILLIAM G. ORTNER
--------------------------
Name: William G. Ortner
Authorized Representative
Confirmed as of the date first above written:
SECURITY CAPITAL SHOPPING MALL BUSINESS TRUST
By: /s/ PHILIP A. MINTZ
-----------------------------
Name: Philip A. Mintz
Title: Vice President
2
EXHIBIT 44
EXECUTION VERSION 2
MASTER TERMS AND CONDITIONS FOR FORWARD TRANSACTIONS
BETWEEN UBS AG, LONDON BRANCH AND SECURITY CAPITAL SHOPPING MALL BUSINESS TRUST
The purpose of this Master Terms and Conditions for Forward
Transactions (the "MASTER CONFIRMATION"), dated as of June 18, 2003, is to set
forth certain terms and conditions for forward transactions that Security
Capital Shopping Mall Business Trust ("COUNTERPARTY") will enter into with UBS
AG, London Branch ("UBS"). Each such transaction (a "TRANSACTION") entered into
between UBS and Counterparty that is to be subject to this Master Confirmation
shall be evidenced by a written confirmation substantially in the form of
Exhibit A hereto, with such modifications thereto as to which Counterparty and
UBS mutually agree (a "CONFIRMATION"). This Master Confirmation and each
Confirmation together constitute a "Confirmation" as referred to in the ISDA
Agreement specified below.
This Master Confirmation and a Confirmation evidence a complete
binding agreement between you and us as to the terms of the Transaction to which
this Master Confirmation and such Confirmation relates. This Master Confirmation
and each Confirmation hereunder shall supplement, form a part of, and be subject
to an agreement in the form of the 1992 ISDA Master Agreement (the "ISDA
AGREEMENT") in the form published by the International Swaps and Derivatives
Association, Inc. ("ISDA"), as if we had executed an agreement in such form
(with a Schedule that had the provisions in Section 11 of this Master
Confirmation) on the date hereof. A copy of the ISDA Agreement has been, or
promptly after the date hereof will be, delivered to you.
The definitions and provisions contained in the 1996 ISDA Equity
Derivatives Definitions (the "DEFINITIONS") as published by ISDA are
incorporated into this Master Confirmation.
THIS MASTER CONFIRMATION WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO CHOICE
OF LAW DOCTRINE. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ALL MATTERS RELATING
HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN, AND ANY CLAIM OF
INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS.
1. In the event of any inconsistency between this Master
Confirmation, on the one hand, and the Definitions or the ISDA Agreement, on the
other hand, this Master Confirmation will control for the purpose of the
Transaction to which a Confirmation relates. In the event of any inconsistency
between the Definitions, the ISDA Agreement, and this Master Confirmation, on
the one hand, and a Confirmation, on the other hand, the Confirmation will
govern. With respect to a Transaction, capitalized terms used herein that are
not otherwise defined shall have the meaning assigned to them in the
Confirmation relating to such Transaction.
2. Each party will make each payment specified in this Master
Confirmation or a Confirmation as being payable by such party, not later than
the due date for value on that date in the place of the account specified below
or otherwise specified in writing, in freely transferable funds and in a manner
customary for payments in the required currency.
3. CONFIRMATIONS:
This Master Confirmation and the ISDA Agreement, together with the
Confirmation relating to a Transaction, shall constitute the written agreement
between Counterparty and UBS with respect to such Transaction.
Each Transaction to which a Confirmation relates is a forward
transaction, the terms of which include:
GENERAL TERMS:
Trade Date:
As provided in the relevant Confirmation.
Seller: Counterparty
Buyer: UBS
Issuer: Regency Centers Corporation
Shares: The common stock of the Issuer (Symbol: "REG").
Number of Shares: As provided in the relevant Confirmation.
Forward Price:
The Initial Forward Price, as provided in the
relevant Confirmation, plus the Forward Interest
Amount MINUS the Dividend Amount, subject to
adjustment as provided in "Cash Settlement
Alternative" below.
WHERE:
"FORWARD INTEREST AMOUNT" means interest on the
Initial Forward Price for the period from and
including the Trade Date to but excluding the
Settlement Date at the applicable Floating Rate,
compounded on each Reset Date and calculated on
an Actual/360 basis.
"DIVIDEND AMOUNT" means the sum of, for each
Relevant Dividend, such Relevant Dividend plus
interest thereon for the period from and
including the related dividend payment date to
but excluding the Settlement Date or Cash
Settlement Payment Date, as applicable, at the
applicable Floating Rate, compounded on each
Reset Date and calculated on an Actual/360 basis.
"RELEVANT DIVIDEND" means any cash dividend or
distribution (other than dividends or
distributions resulting in an adjustment pursuant
"Adjustments" below) to which a holder of a Share
would be entitled, if the applicable record date
occurs during the period from, and including, the
Trade Date to, but excluding, the Settlement Date
or Cash Settlement Payment Date, as applicable.
2
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity:
(i) for the Forward Interest Amount, three
months; and
(ii) for the Dividend Amount, (x) for the
period from the related dividend payment date
until the next Reset Date, such period (with
Linear Interpolation applicable) and (y)
thereafter, three months;
PROVIDED that (A) the Designated Maturity for
the period commencing on the Trade Date shall
be the number of days from and including the
Trade Date to but excluding the Reset Date in
October 2003 (with Linear Interpolation
applicable) and (B) the Designated Maturity
for the period ending on the scheduled
Settlement Date shall be the number of days
from and including the final Reset Date (or,
as applicable, the related dividend payment
date) to but excluding the scheduled
Settlement Date (with Linear Interpolation
applicable).
Reset Dates: (i) The Trade Date and (ii) October
1, 2003 and each three month anniversary thereof,
in each case subject to adjustment according to
the Modified Following Business Day Convention.
Terms used in this "Forward Price" provision but
not otherwise defined have the meanings assigned
thereto in the 2000 ISDA Definitions.
Settlement Currency: USD
Exchange: New York Stock Exchange
Related Exchange(s): Each relevant futures and options exchange with
respect to the Shares.
Credit Support Document: Upon execution of this Master Confirmation,
Counterparty shall deliver an executed copy of a
guaranty from General Electric Capital
Corporation in the form of Exhibit B. With
respect to Counterparty, General Electric Capital
Corporation shall be a Credit Support Provider
and such guaranty shall be a Credit Support
Document.
3
SETTLEMENT TERMS:
Physical Settlement: Settlement of a Transaction shall be by Physical
Settlement unless Counterparty properly elects
Cash Settlement in accordance with "Cash
Settlement Alternative" below. If Physical
Settlement is applicable, on the Settlement Date,
UBS shall pay to Counterparty an amount equal to
the product of the Forward Price and the Number
of Shares and Counterparty will deliver to UBS a
number of Shares equal to the Number of Shares.
Such delivery will be made on a delivery versus
payment basis through the Clearance System. If a
Settlement Disruption Event prevents delivery on
that day, Section 6.2 of the Definitions shall
apply.
Settlement Date: As provided in the relevant Confirmation, or such
other date as the parties may agree.
Representation and Sections 6.8 and 6.10 of the Definitions shall
Agreement; Default apply.
Interest:
Cash Settlement Upon written notice to UBS no more than 5, and no
Alternative: less than 2, Exchange Business Days prior to the
Settlement Date, Counterparty may elect to settle
a Transaction on a cash basis (the "CASH
SETTLEMENT Alternative"). Such election shall be
irrevocable.
If the Cash Settlement Alternative has been
properly elected:
(a) UBS or an affiliate shall purchase a number
of Shares equal to the Number of Shares over a
period (the "PRICING PERIOD"), not to exceed 45
Exchange Business Days, beginning on the
Settlement Date. Each day on which UBS or such
affiliate purchases Shares is referred to as a
"PRICING DATE" and the "FINAL PRICE" for a
Pricing Date shall be the average execution price
(including any fees or commissions incurred in
connection with such purchases) paid by UBS or
such affiliate to purchase Shares on such Pricing
Date in connection with the Cash Settlement
Alternative.
(b) the Forward Price for a Pricing Date shall be
the Forward Price (as defined above) plus
interest thereon, from and including the
Settlement Date to but excluding the related Cash
Settlement Payment Date, at the Federal Funds
Open Rate for such day, compounded on each
Business Day and calculated on a actual/360
basis.
WHERE:
4
"FEDERAL FUNDS OPEN RATE" means, with respect
to any day, the opening federal funds rate
quoted on Bloomberg Financial Markets as of
such day (or, if that day is not a Business
Day, the next preceding Business Day);
PROVIDED that if no such rate appears on such
Business Day, the Calculation Agent shall
determine the rate in a commercially
reasonable manner from any publicly available
source (including any Federal Reserve Bank).
"BUSINESS DAY" means any day on which
commercial banks are open for general
business (including dealings in foreign
exchange and foreign currency deposits) in
New York City.
(c) on the third Exchange Business Day following
each Pricing Date (each, a "CASH SETTLEMENT
PAYMENT DATE"), Counterparty shall pay to UBS an
amount of USD equal to (i) the Number of Shares
MULTIPLIED BY (ii) the Final Price for such
Pricing Date MINUS the Forward Price for such
Pricing Date (or, if such calculation results in
a negative number, then UBS will pay to
Counterparty the absolute value of such
calculation).
ADJUSTMENTS:
Method of Adjustment: Calculation Agent Adjustment, it being understood
that, if the Potential Adjustment Event results
in holders of Shares receiving assets other than
Shares, cash or Reported Securities, the
adjustment made by the Calculation Agent may
include payment by the Counterparty of cash equal
to the value of the assets to which a holder of
the Number of Shares would be entitled (such
value determined by the Calculation Agent in a
commercially reasonable manner on the date of
distribution of such assets to holders of Shares
or, if later, the date such assets cease to be
Reported Securities) plus interest thereon at the
prevailing swap rate for the period from such
date through the Settlement Date or Cash
Settlement Payment Date, as applicable.
"REPORTED SECURITIES" means securities that (1)
are (a) listed on a United States national
securities exchange, (b) reported on a United
States national securities system subject to last
sale reporting, (c) traded in the over the
counter market and reported on the National
Quotation Bureau or similar organization, or (d)
for which bid and ask prices are available from
at least three nationally recognized investment
banking firms selected by the Calculation Agent,
and (2) are either (a) perpetual equity
securities or (b) non perpetual equity or debt
securities with a stated maturity after the
maturity date of the SynDECS relating to stock of
the Issuer issued on or about the Trade Date.
5
EXTRAORDINARY EVENTS:
Consequences of Merger
Events (in each case, as if
the Transaction were a
Share Swap Transaction):
(a) Share-for-Share: Alternative Obligation.
(b) Share-for-Other: Alternative Obligation.
(c) Share-for-Combined: Alternative Obligation.
Notwithstanding the definition of Alternative
Obligation, if the Merger Event results in
holders of Shares receiving assets other than
cash or Reported Securities, in lieu of
delivering such assets (or valuing such assets as
provided in "Cash Settlement Alternative" above),
Counterparty shall pay cash equal to the value of
the assets to which a holder of the Number of
Shares would be entitled (such value determined
by the Calculation Agent in a commercially
reasonable manner on the date of distribution of
such assets to holders of Shares or, if later,
the date such assets cease to be Reported
Securities) plus interest thereon at the
prevailing swap rate for the period from such
date through the Settlement Date or Cash
Settlement Payment Date, as applicable.
Nationalization, Negotiated Close-out.
Insolvency or
De-Listing:
"DE-LISTING EVENT" means that the Shares cease to
be listed on or quoted by any of the New York
Stock Exchange, the American Stock Exchange or
the NASDAQ National Market (or their respective
successors) for any reason other than a Merger
Event. For purposes of a De-Listing Event, the
Announcement Date shall be deemed to be the date
that the De-Listing Event first occurs (as
determined by the Calculation Agent).
4. CALCULATION AGENT:
UBS is the Calculation Agent and, after good faith consultation
with Counterparty, shall make all calculations, adjustments and determinations
required pursuant to a Transaction in good faith and a commercially reasonable
manner.
5. SECURITIES LAW REPRESENTATIONS AND AGREEMENTS:
Counterparty hereby represents, warrants and agrees in favor of
UBS on the Trade Date with respect to the Shares it is holding on the Trade
Date:
(a) The Shares are "restricted securities" within the meaning
of Rule 144 under the Securities Act of 1933, as amended (the "SECURITIES ACT").
(b) Counterparty's "holding period" for the Shares, determined
in accordance with Rule 144, commenced more than two years prior to the date
hereof.
6
(c) Counterparty understands and will comply with
Counterparty's responsibilities under applicable securities laws in connection
with the Transactions including, but not limited to, the provisions of Rule 144
and the filing requirements (to the extent applicable) of Sections 13 and 16 of
the Securities Exchange Act of 1934.
7
6. ADDITIONAL REPRESENTATIONS AND AGREEMENTS:
(a) In connection with this Master Confirmation, each
Confirmation, each Transaction to which a Confirmation relates and any other
documentation relating to the ISDA Agreement, each party represents and
acknowledges to the other party on the Trade Date of each Transaction that:
(i) such party is acting as principal for such party's
own account and not as agent when entering into such Transaction;
(ii) such party has sufficient knowledge and expertise to
enter into such Transaction and such party is entering into such
Transaction in reliance upon such tax, accounting, regulatory, legal, and
financial advice as such party deems necessary and not upon any view
expressed by the other. Such party has made such party's own independent
decision to enter into such Transaction, is acting at arm's length and is
not relying on any communication (written or oral) of the other party as
a recommendation or investment advice regarding such Transaction. Such
party has the capability to evaluate and understand (on such party's own
behalf or through independent professional advice), and does understand,
the terms, conditions and risks of such Transaction and is willing to
accept those terms and conditions and to assume (financially and
otherwise) those risks. Such party acknowledges and agrees that the other
party is not acting as a fiduciary or advisor to such party in connection
with such Transaction. Such party is not entering into such Transaction
for purposes of speculation; and
(iii) such party is an "accredited investor" as defined in
Section 2(a)(15)(ii) of the Securities Act and an "eligible contract
participant" as such term is defined in the Commodity Exchange Act, as
amended.
(b) In connection with this Master Confirmation, each
Confirmation, each Transaction to which a Confirmation relates and any other
documentation relating to the ISDA Agreement, Counterparty represents and
acknowledges to UBS on the Trade Date of each Transaction that:
(i) Counterparty understands no obligations of UBS to
Counterparty hereunder will be entitled to the benefit of deposit
insurance and that such obligations will not be guaranteed by any
affiliate of UBS or any governmental agency;
(ii) Counterparty's financial condition is such that
Counterparty has no need for liquidity with respect to Counterparty's
investment in such Transaction and no need to dispose of any portion
thereof to satisfy any existing or contemplated undertaking or
indebtedness. Counterparty's investments in and liabilities in respect of
such Transaction, which Counterparty understands are not readily
marketable, is not disproportionate to Counterparty's net worth, and
Counterparty is able to bear any loss in connection with such
Transaction, including the loss of Counterparty's entire investment in
such Transaction;
(iii) COUNTERPARTY UNDERSTANDS THAT SUCH TRANSACTION IS
SUBJECT TO COMPLEX RISKS WHICH MAY ARISE WITHOUT WARNING AND MAY AT TIMES
BE VOLATILE AND THAT LOSSES MAY OCCUR QUICKLY AND IN UNANTICIPATED
MAGNITUDE AND IS WILLING TO ACCEPT SUCH TERMS AND CONDITIONS AND ASSUME
(FINANCIALLY AND OTHERWISE) SUCH RISKS;
8
(iv) Neither Counterparty nor any of Counterparty's
affiliates is in possession of any material non-public information
concerning the Issuer. "MATERIAL" information for these purposes is any
information to which an investor would reasonably attach importance in
reaching a decision to buy, sell or hold securities of the Issuer;
(v) Counterparty is entering into such Transaction for
Counterparty's own account and not with a view to transfer, resale or
distribution and understands that such Transaction may involve the
purchase or sale of a security as defined in the Securities Act and the
securities laws of certain states, that any such security has not been
registered under the Securities Act or the securities laws of any state
and, therefore, may not be sold, pledged, hypothecated, transferred or
otherwise disposed of unless such security is registered under the
Securities Act and any applicable state securities law, or an exemption
from registration is available;
(vi) Counterparty is aware and acknowledges that UBS, its
affiliates or any entity with which UBS hedges such Transaction may from
time to time take positions in instruments that are identical or
economically related to such Transaction or the Shares or have an
investment banking or other commercial relationship with the Issuer. In
addition, Counterparty acknowledges that the proprietary trading and
other activities and transactions of UBS, its affiliates or any entity
with which UBS hedges such Transaction, including purchases and sales of
the Shares in connection with, or in anticipation of, such Transaction,
may affect the trading price of the Shares;
(vii) Counterparty will immediately notify UBS of the
occurrence of an Event of Default under the ISDA Agreement where
Counterparty is the Defaulting Party, or the occurrence of any event that
with the giving of notice, the lapse of time or both would be such an
Event of Default; and
(viii) Counterparty was not or will not be insolvent at the
time any Transaction hereunder was consummated, and was not or will not
be rendered insolvent or will not be insolvent as a result thereof. At
the time of any transfer to or for the benefit of UBS, Counterparty did
not intend or will not intend to incur, and did not incur or will not
incur, debts that were beyond the ability of Counterparty to pay as they
mature.
7. ACKNOWLEDGMENTS:
The parties hereto intend for:
(a) Each Transaction hereunder to be a "securities contract"
and a "swap agreement" as defined in the Bankruptcy Code (Title 11 of the United
States Code) (the "BANKRUPTCY CODE"), and the parties hereto are entitled to the
protections afforded by, among other Sections, Sections 362(b)(6), 555 and 560
of the Bankruptcy Code.
(b) A party's right to liquidate a Transaction and to exercise
any other remedies upon the occurrence of any Event of Default under the ISDA
Agreement with respect to the other party to constitute a "contractual right" as
described in the Bankruptcy Code.
(c) Any cash, securities or other property provided as
performance assurance, credit support or collateral with respect to a
Transaction to constitute "margin payments" and "transfers" under a "swap
agreement" as defined in the Bankruptcy Code.
9
(d) All payments for, under or in connection with a
Transaction, all payments for the Shares and the transfer of such Shares to
constitute "settlement payments" and "transfers" under a "swap agreement" as
defined in the Bankruptcy Code.
8. INDEMNIFICATION:
Counterparty agrees to indemnify and hold harmless UBS, its
Affiliates and its assignees and their respective directors, officers,
employees, agents and controlling persons (UBS and each such person being an
"INDEMNIFIED PARTY") from and against any and all losses, claims, damages and
liabilities, joint or several, to which such Indemnified Party may become
subject, and relating to or arising out of any misrepresentation by Counterparty
relating to the representation set forth in Section 6(b)(iv) of this Master
Confirmation or allegation by a third party that Counterparty acted or failed to
act in a manner that, as alleged, would have constituted such a
misrepresentation, and will reimburse any Indemnified Party for all expenses
(including reasonable counsel fees and expenses) as they are incurred in
connection with the investigation of, preparation for or defense or settlement
of any pending or threatened claim or any action, suit or proceeding arising
therefrom, whether or not such Indemnified Party is a party thereto and whether
or not such claim, action, suit or proceeding is initiated or brought by or on
behalf of Counterparty. Counterparty will not be liable under the foregoing
indemnification provision to the extent that any loss, claim, damage, liability
or expense is found in a nonappealable judgment by a court of competent
jurisdiction to have resulted from UBS's breach of a material term of this
Master Confirmation, willful misconduct or gross negligence. If for any reason
the foregoing indemnification is unavailable to any Indemnified Party or
insufficient to hold harmless any Indemnified Party, then Counterparty shall
contribute, to the maximum extent permitted by law (but only to the extent that
such harm was not caused by UBS's breach of a material term of this Master
Confirmation, willful misconduct or gross negligence), to the amount paid or
payable by the Indemnified Party as a result of such loss, claim, damage or
liability. Counterparty also agrees that no Indemnified Party shall have any
liability to Counterparty or any person asserting claims on behalf of or in
right of Counterparty in connection with or as a result of any matter referred
to in this Master Confirmation or the ISDA Agreement except to the extent that
any losses, claims, damages, liabilities or expenses incurred by Counterparty
result from the breach of a term of this Master Confirmation, or the Indemnified
Party's gross negligence or willful misconduct. The provisions of this Section 8
shall survive completion of the Transactions contemplated by this Master
Confirmation and any assignment and delegation pursuant to Section 10(b) of this
Master Confirmation and shall inure to the benefit of any permitted assignee of
UBS.
9. EARLY UNWIND:
On any Exchange Business Day, Counterparty (i) may notify UBS of
its desire to effect a settlement with respect to any portion or all of a
Transaction as specified in such notice (an "EARLY UNWIND") and (ii) shall
include in such notice (1) the date of such Early Unwind (the "EARLY UNWIND
DATE"), with such date being before the scheduled Settlement Date and not less
than three Exchange Business Days after the date Counterparty so notifies UBS
and (2) an indication of its settlement election pursuant to the provisions of
"Settlement Terms"; PROVIDED that Counterparty may not elect an Early Unwind
under a Transaction hereunder until after the 60th calendar day following the
final settlement of each transaction governed by the Master Terms and Conditions
for Forward Transactions, dated as of June 18, 2003, between Counterparty and
Citibank, N.A. The Early Unwind Date shall be deemed the Settlement Date. In the
event of an Early Unwind, the Calculation Agent shall adjust the terms of the
relevant Transaction appropriately to reflect any additional funding costs
incurred, or any reduction in funding costs received, by UBS by virtue of the
settlement of an Early Unwind occurring on other than a Reset Date.
10
10. OTHER PROVISIONS:
(a) EARLY TERMINATION. The parties agree that for purposes of
Section 6(e) of the ISDA Agreement, Second Method and Loss will apply to each
Transaction under this Master Confirmation.
(b) TRANSFER.
(i) Notwithstanding any provision of the ISDA Agreement to the
contrary, UBS shall be entitled to assign its rights and obligations hereunder
to make or receive cash payments and transfer of Shares and other related rights
to one or more entities that are wholly-owned, directly or indirectly, by UBS
AG, or any successor thereto (each, a "UBS AFFILIATE"); PROVIDED that
Counterparty shall have recourse to UBS in the event of the failure by a UBS
Affiliate to perform any of such obligations hereunder. Notwithstanding the
foregoing, recourse to UBS shall be limited to recoupment of Counterparty's
monetary damages and Counterparty hereby waives any right to seek specific
performance by UBS of its obligations hereunder. Such failure after any
applicable grace period shall be an Additional Termination Event with the
Transaction to which the failure relates as the sole Affected Transaction and
UBS as the sole Affected Party.
(ii) UBS may also assign or transfer any of its rights and
duties hereunder or delegate its obligations hereunder to the extent necessary
to avoid any of the Shares subject to delivery to UBS pursuant to a Transaction
being treated as "Excess Shares" under the articles of incorporation of the
Issuer (or, if the number of "Excess Shares" is fewer than 1,000,000 Shares, to
the extent of 1,000,000 Shares) to any entity not affiliated with UBS with a
credit rating at the time of such assignment (A) of AA- or above by a nationally
recognized statistical rating organization (as defined in the Securities
Exchange Act of 1934) or (B) of at least A1 by Moody's and of at least A by
Standard & Poor's so long as such entity enters into a collateral arrangement
satisfying the policies of Counterparty's Credit Support Provider at the time of
such assignment, in each case with the consent of Counterparty which consent
shall not be unreasonably withheld.
(c) CONSENT TO RECORDING. Each party (i) consents to the
recording of the telephone conversations of trading and marketing personnel of
the parties and their affiliates in connection with this Master Confirmation and
(ii) agrees to obtain any necessary consent of, and give notice of such
recording to, such personnel of such party and such party's affiliates.
(d) SEVERABILITY; ILLEGALITY. If compliance by either party
with any provision of a Transaction would be unenforceable or illegal, (i) the
parties shall negotiate in good faith to resolve such unenforceability or
illegality in a manner that preserves the economic benefits of the transactions
contemplated hereby and (ii) the other provisions of such Transaction shall not
be invalidated, but shall remain in full force and effect.
(e) WAIVER OF TRIAL BY JURY. EACH OF COUNTERPARTY AND UBS
HEREBY IRREVOCABLY WAIVES (ON SUCH PARTY'S OWN BEHALF AND, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ON BEHALF OF SUCH PARTY'S STOCKHOLDERS) ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS MASTER
CONFIRMATION OR THE ACTIONS OF UBS OR ITS AFFILIATES IN THE NEGOTIATION,
PERFORMANCE OR ENFORCEMENT HEREOF.
(f) CONFIDENTIALITY. Notwithstanding any other provision in
this Master Confirmation, the Counterparty and UBS hereby agree that the
Counterparty (and each employee,
11
representative, or other agent of the Counterparty) may disclose to any and all
persons, without limitation of any kind, the U.S. tax treatment and U.S. tax
structure of the transaction and all materials of any kind (including opinions
or other tax analyses) that are provided to the Counterparty relating to such
U.S. tax treatment and U.S. tax structure, other than any information for which
nondisclosure is reasonably necessary in order to comply with applicable
securities laws.
11. SCHEDULE PROVISIONS:
(a) The "CROSS DEFAULT" provisions of Section 5(a)(vi) of the ISDA Agreement
will not apply to UBS and will not apply to Counterparty.
(b) ADDITIONAL TERMINATION EVENT will apply. The following shall constitute
Additional Termination Events with respect to the ISDA Agreement:
CREDIT EVENT. (a) If at any time the rating issued by Standard & Poor's
Corporation ("S&P") or Moody's Investors Service, Inc. ("Moody's") with
respect to the long-term unsecured, unsubordinated debt securities ("Debt
Securities") of Counterparty's Credit Support Provider or of UBS (in
which case Counterparty or UBS, as the case may be, will be the Affected
Party) is below A- in the case of S&P or is below A3 in the case of
Moody's (a "Credit Event"), then the other party (the Non-Affected Party)
will have the right, (i) by written notice, to request the Affected Party
to transfer all its rights and obligations under this Agreement and all
Affected Transactions within 30 days to another party acceptable to the
Non-Affected Party the financial program or Debt Securities of such party
which are rated AA- or above in the case of S&P and Aa3 or above in the
case of Moody's, (ii) to terminate this Agreement by giving notice of an
Early Termination Date in respect of all Affected Transactions or (iii)
to take neither of the actions contained in subclauses (i) and (ii) of
this paragraph (a), in which event such failure or delay on the part of
the Non-Affected Party in exercising any of its rights contained in
subclauses (i) and (ii) of this paragraph (a) shall not operate as a
waiver thereof nor preclude any further exercise of such rights. In the
event a transfer as requested by the Non-Affected Party pursuant to
subclause (i) of this paragraph (a) has not been effected with respect to
the ISDA Agreement and all Affected Transactions within 30 days, then the
Non-Affected Party may, provided the Credit Event is still continuing,
designate a day not earlier than the day such notice is effective under
the ISDA Agreement as an Early Termination Date in respect of all
Affected Transactions.
(b) If one of the foregoing credit rating agencies ceases to be
in the business of rating Debt Securities and such business is not
continued by a successor or assign of such agency (the "Discontinued
Agency"), UBS and Counterparty shall jointly (i) select a
nationally-recognized credit rating agency in substitution thereof and
(ii) agree on the rating level issued by such substitute agency that is
equivalent to the ratings specified herein of the Discontinued Agency,
whereupon such substitute agency and equivalent rating shall replace the
Discontinued Agency and the rating level thereof for the purposes of the
ISDA Agreement. If at any time all of the agencies specified herein with
respect to a party have become Discontinued Agencies and UBS and
Counterparty have not previously agreed in good faith on at least one
agency and equivalent rating in substitution for a Discontinued Agency
and the applicable rating thereof, the Credit Event provisions of
paragraph (a) shall cease to apply to the parties.
BREACH OF WARRANTY. Any Warranty made or deemed to have been made or
repeated by any party or any Credit Support Provider of such party (if
applicable) in this Agreement or any Credit Support Document (if
applicable) proves to have been incorrect when made or repeated or deemed
to have been made or repeated (in which case the party that made or is
deemed to have made or repeated such Warranty shall be the Affected
Party).
12
(c) PROVISION OF FINANCIAL INFORMATION. For purposes of Section 4(a)(ii) of
the ISDA Agreement, each party agrees to deliver financial information,
described as follows:
(i) Upon request of the other party and within a reasonable
time after public availability, each party agrees to furnish to the other
party a copy of the annual report of such party (or, in the case of
Counterparty, of Counterparty's Credit Support Provider) containing
audited consolidated financial statements for such fiscal year certified
by independent certified public accountants and prepared in accordance
with generally accepted accounting principles ("GAAP"), or, in lieu
thereof, a copy of such party's Form 10-K as filed with the Securities
and Exchange Commission.
(ii) Upon request of the other party and within a reasonable
time after public availability, each party agrees, with respect to the
first three quarters of its fiscal year, to furnish to the other party a
copy of the unaudited consolidated financial statements of such party
(or, in the case of Counterparty, of Counterparty's Credit Support
Provider) for its most recent fiscal quarter prepared in accordance with
GAAP on a basis consistent with that of the annual financial statements
of such party, or, in lieu thereof, a copy of such party's Form 10-Q as
filed with the Securities and Exchange Commission.
(d) ADDITIONAL TAX PROVISIONS. (i) The definition of "Indemnifiable Tax" in
Section 14 of the ISDA Agreement is modified by adding the following at
the end thereof:
Notwithstanding the foregoing, "Indemnifiable Tax" also
means any Tax imposed in respect of a payment under this
Agreement by reason of a Change in Tax Law by a government
or taxing authority of a Relevant Jurisdiction of the party
making such payment, unless the other party is
incorporated, organized, managed and controlled or
considered to have its seat in such jurisdiction, or is
acting for purposes of this Agreement through a branch or
office located in such jurisdiction.
(ii) Section 4(a)(iii) of the ISDA Agreement is modified by
deleting the word "materially" in the sixth line thereof.
(e) SETTLEMENT AMOUNT. The definition of "Settlement Amount" in Section 14 of
the ISDA Agreement is hereby amended by deleting in the third and fourth
lines of subparagraph (b) thereof the words "or would not (in the
reasonable belief of the party making the determination) produce a
commercially reasonable result".
(f) ADDITIONAL REPRESENTATIONS. Section 3 of the ISDA Agreement is hereby
amended by adding the following additional subsections:
(g) ELIGIBLE CONTRACT PARTICIPANT. It is an "eligible contract
participant" as defined in Section 1a(12) of the Commodity
Exchange Act, as amended.
(h) FDICIA/REGULATION EE. In addition to the foregoing
representations, UBS represents to Counterparty either that
(1) it is a Financial Institution as defined in Section
402(9) of the Federal Deposit Insurance Corporation
Improvement Act of 1991, or (2) (A) it will engage in
Financial Contracts (as defined in Section 2 of Regulation
EE of the Federal Reserve Board (12 C.F.R. ss.231.2)) as a
counterparty on both sides of one or more Financial Markets
(as defined in Section 2 of Regulation EE of the Federal
Reserve Board (12 C.F.R. ss.231.2)), and (B) that, on the
date of this Agreement, it
13
meets at least one of the tests set forth in Section
3(a)(1)-(2) of Regulation EE of the Federal Reserve Board
(12 C.F.R.ss.231.3(a)(1)-(2)). The representation contained
in clause (1) or clause 2(A) of this paragraph (h), as the
case may be, will be deemed to be repeated by UBS on each
date on which a Transaction is entered into.
(g) WARRANTIES REGARDING RELATIONSHIP BETWEEN PARTIES.
(i) The definition of "AFFECTED TRANSACTIONS" in Section 14 of the
ISDA Agreement is modified by adding the following immediately
preceding the words "an Illegality" in the first line thereof:
a breach of any Warranty made pursuant to this Agreement,
(ii) Section 14 of the ISDA Agreement is modified by adding the
following new defined term in its appropriate alphabetical
location:
"WARRANTY" has the meaning specified in clause (g)(iii)
below.
(iii) WARRANTIES. The following warranties (the "Warranties") are made
by one or both of the parties to this Agreement, as specified
below, or, if applicable, any Credit Support Provider of any such
party or any Specified Entity of any such party, to the other
party (which Warranties will be deemed to be repeated by each such
party on each date on which a Transaction is entered into):
(A) STATUS OF PARTIES. Each party warrants to the other party
that (1) it is acting for its own account in respect of all
Transactions governed by this Agreement, (2) the other
party is not acting as a fiduciary for it in respect of any
such Transaction, and (3) it is not relying on any
communication (whether written or oral) of the other party
as investment advice or as a recommendation to enter into
any transaction.
(B) DISCLOSURE. Each party warrants to the other party that
written information provided to the other party regarding
any Transaction governed by this Agreement shall not
contain any untrue statement of a material fact.
12. NOTICE INFORMATION:
If to Counterparty:
Security Capital Shopping Mall Business Trust
c/o GE Capital Real Estate
292 Long Ridge Road
Stamford, CT 06927
Attention: Philip Mintz
Telecopier: 203-585-0179
with copies to:
14
GE Capital Real Estate
292 Long Ridge Road
Stamford, CT 06927
Attention: Legal Operation/Security Capital
Telecopier: 203-357-6768
and
General Electric Capital Corporation
260 Long Ridge Road
Stamford, CT 06927
Attention: Senior Vice President - Corporate Treasury
and Global Funding Operation
Telecopier: 203-357-4975
If to UBS:
UBS AG, London Branch c/o UBS Securities LLC 677
Washington Blvd, Stamford CT 06901 USA
Attention: Equity Risk Management (Corporates)
Telephone: 203 719 7100
Facsimile: 203 719 7031
with a copy to:
UBS Securities LLC,
677 Washington Blvd,
Stamford, CT 06901
Attention: Legal Affairs (Equities Group)
Facsimile: 1 203 719 0680
15
Yours sincerely,
UBS AG, LONDON BRANCH
By: /s/ SANJAY K. GARG
------------------------------
Name: Sanjay K. Garg
Authorized Representative
By: /s/ DANIEL HASSETT
Name: Daniel Hassett
Managing Director
Equities
Confirmed as of the date first above written:
SECURITY CAPITAL SHOPPING MALL BUSINESS TRUST
By: /s/ PHILIP A. MINTZ
---------------------------------------
Name: Philip A. Mintz
Title: Vice President
16
EXHIBIT 44
EXHIBIT A
FORM OF
FORWARD TRANSACTION
CONFIRMATION
CONFIRMATION
Date: _________________
To: Security Capital Shopping Mall Business Trust ("Counterparty")
c/o GE Capital Real Estate
292 Long Ridge Road
Stamford, CT 06927
Telefax No.: 203-585-0179
Attention: Philip Mintz
From: UBS AG, London Branch ("UBS")
Telefax No.: 203-719-7031
Transaction Reference No.: _________________
The purpose of this communication is to set forth the terms
and conditions of the above-referenced Transaction entered into on the Trade
Date specified below (the "TRANSACTION") between you and us. This communication,
together with the Master Confirmation (as defined below), constitutes a
"Confirmation" as referred to in the Master Confirmation.
1. The definitions and provisions contained in the 1996
ISDA Equity Derivatives Definitions (the "DEFINITIONS") as published by the
International Swaps and Derivatives Association, Inc. and in the Master
Confirmation are incorporated into this Confirmation. In the event of any
inconsistency between those definitions and provisions and this Confirmation,
this Confirmation will govern.
2. This Confirmation supplements, forms a part of, and
is subject to the Master Terms and Conditions for Forward Transactions dated as
of June 18, 2003 (the "MASTER CONFIRMATION") between you and us. All provisions
contained in the ISDA Agreement (as modified and as defined in the Master
Confirmation) shall govern this Confirmation except as expressly modified below.
3. The particular Transaction to which this Confirmation
relates is a forward transaction, the terms of which are as follows:
Trade Date: [June 24, 2003]
Number of Shares: [4,200,000]
Initial Forward Price: [ ]
Settlement Date: [June 1, 2004]
Counterparty hereby agrees (a) to check this Confirmation
carefully and immediately upon receipt so that errors or discrepancies can be
promptly identified and rectified and (b) to confirm that the foregoing
correctly sets forth the terms of the agreement between us with respect to the
particular Transaction to which this Confirmation relates by manually signing
this Confirmation and providing any other information requested herein or in the
Master Confirmation and immediately sending a facsimile transmission of an
executed copy to Equity Risk Management (Corporates) 203-719-7031, with an
executed copy sent to UBS AG, London Branch, c/o UBS Securities LLC, 677
Washington Blvd, Stamford CT 06901 USA, Attention: Equity Risk Management
(Corporates).
Yours sincerely,
UBS AG, LONDON BRANCH
By:
------------------------------
Name:
Authorized Representative
Confirmed as of the date first above written:
SECURITY CAPITAL SHOPPING MALL BUSINESS TRUST
By:
---------------------------------------
Name:
Title:
2
EXHIBIT 44
EXHIBIT B
FORM OF
GECC GUARANTY
GUARANTY
GUARANTY (the "Guaranty"), dated as of June 18, 2003 by GENERAL
ELECTRIC CAPITAL CORPORATION, a Delaware corporation ("GE Capital") in favor of
UBS AG, London Branch (the "Counterparty").
RECITALS
WHEREAS, the Counterparty has entered into a Master Terms and
Conditions for Forward Transactions, dated as of June 18, 2003 (together with
the ISDA Master Agreement referenced therein and the Confirmations thereunder,
the "Agreement"), with Security Capital Shopping Mall Business Trust (the
"Subsidiary") providing, among other things, for the Subsidiary to make certain
payments and/or deliveries to Counterparty in connection with certain swaps,
forward contracts or other derivative transactions (the "Transactions");
WHEREAS, the Counterparty has requested GE Capital, as the parent of
the Subsidiary, to provide a guaranty to the Counterparty on the terms and
conditions hereinafter provided; and
WHEREAS, GE Capital is willing to enter into this Guaranty to induce
the Counterparty to enter into the Agreement with the Subsidiary;
NOW, THEREFORE, GE Capital hereby agrees:
SECTION 1. GUARANTY BY GE CAPITAL. (a) From and after the date hereof,
GE Capital hereby irrevocably and unconditionally guarantees the due and
punctual payment of all amounts payable by the Subsidiary to the Counterparty
pursuant to the terms of the Agreement when the same shall become due and
payable, whether on scheduled payment dates or otherwise, in each case after any
applicable grace periods or notice requirements; PROVIDED, HOWEVER, that GE
Capital shall not be liable to make any payment until two Business Days (as used
herein, a "Business Day" shall refer to a day other than a Saturday or a Sunday
on which commercial banks are open for business in the City of New York, United
States of America) following receipt by GE Capital of written notice from the
Counterparty that a payment is due thereunder (the "Notice Requirement"). GE
Capital hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Agreement; any
change in or amendment thereto, the absence of any action to enforce the same,
any waiver or consent by the Counterparty with respect to any provision thereof;
the recovery of any judgment against the Subsidiary or any action to enforce the
same; or any other circumstances which may otherwise constitute a legal or
equitable discharge or defense of a guarantor; provided, however, that nothing
contained herein shall be constituted to be a waiver by GE Capital of the Notice
Requirement with respect to the Agreement and the obligations evidenced thereby
or hereby. GE Capital covenants that this Guaranty will not be discharged except
by complete performance of the obligations contained in the Agreement and in
this Guaranty.
(b) GE Capital shall be subrogated to all rights of the
Counterparty in respect of any amounts paid by GE Capital pursuant to the
provisions of this Guaranty; PROVIDED, HOWEVER, that GE Capital shall be
entitled to enforce, or to receive any payments arising out of or based upon,
such right of subrogation with respect to any Transaction only after the payment
of all amounts owed by the Subsidiary to the Counterparty with respect to such
Transaction have been paid in full.
(c) This Guaranty shall continue to be effective or reinstated, as
the case may be, if at any time any payment made by the Subsidiary to the
Counterparty with respect to a Transaction or pursuant to the terms of the
Agreement is rescinded or must otherwise be returned by the Counterparty upon
the insolvency, bankruptcy or reorganization by GE Capital, the Subsidiary or
otherwise, all as though such payment had not been made.
MISCELLANEOUS
2.1. NOTICES. All notices to GE Capital under this Guaranty and copies of all
notices of payment failure or other breaches by the Subsidiary of the Agreement
sent to the Subsidiary under the Agreement shall, until GE Capital furnishes
written notice to the contrary, be mailed or delivered to GE Capital at 201 High
Ridge Road, Stamford, Connecticut 06927-9400, and directed to the attention of
the Senior Vice President-Corporate Treasury and Global Funding Operation of GE
Capital.
2.2. GOVERNING LAW. This Guaranty shall be construed and enforced in accordance
with, and governed by, the laws of the State of New York, United States of
America. GE Capital hereby irrevocably consents to, for the purposes of any
proceeding arising out of this Guaranty, the exclusive jurisdiction of the
courts of the State of New York and the United States District Court located in
the borough of Manhattan in New York City.
2.3. INTERPRETATION. The headings of the sections and other subdivisions of
this Guaranty are inserted for convenience only and shall not be deemed to
constitute a part hereof.
2.4. ATTORNEY'S COST. GE Capital agrees to pay all reasonable attorney's fees
and disbursements and all other reasonable and actual costs and expenses which
may be incurred by the Counterparty in the enforcement of this Guaranty of the
Agreement.
2.5. NO SET-OFF. The Counterparty shall be deemed to have waived any right to
set-off, combine, consolidate, or otherwise appropriate and apply, any
indebtedness at any time held or owing by the Counterparty against, or on
account of, any obligations or liabilities of GE Capital under this Guaranty. In
addition, GE Capital agrees to waive any right to set-off, combine, consolidate,
or otherwise appropriate and apply any obligations or liabilities of GE Capital
under this Guaranty against, or on account of, any indebtedness at any time held
or owing by the Counterparty.
2.6. CURRENCY OF PAYMENT. Any payment to be made by GE Capital shall be made
in the same currency as designated for payment in the Agreement and such
designation of the currency of payment is of the essence.
2.7. TRANSFER. Neither this Guaranty nor any interest or obligation in or
under this Guaranty may be transferred (whether by way of security or otherwise)
by GE Capital or the Counterparty without the prior written consent of the
other, except that the Counterparty may, without the consent of GE Capital,
transfer its interest in this Guaranty to any person or entity to which any
interest or obligation in or under the Agreement or any Transaction is
transferred in a manner that is not inconsistent with the Agreement.
GENERAL ELECTRIC CAPITAL
CORPORATION
By:____________________________________
Vice President
2
ACKNOWLEDGEMENT AND AGREEMENT
UBS AG, London Branch hereby acknowledges and consents to the provisions of the
foregoing Guaranty.
UBS AG, LONDON BRANCH
By:___________________________________
Title:
3
EXHIBIT 44
EXECUTION VERSION 2
CONFIRMATION
Date: June 24, 2003
To: Security Capital Shopping Mall Business Trust ("Counterparty")
c/o GE Capital Real Estate
292 Long Ridge Road
Stamford, CT 06927
Telefax No.: 203-585-0179
Attention: Philip Mintz
From: UBS AG, London Branch ("UBS")
Telefax No.: 203-719-7031
Transaction Reference No.: 1354518
The purpose of this communication is to set forth the terms
and conditions of the above-referenced Transaction entered into on the Trade
Date specified below (the "TRANSACTION") between you and us. This communication,
together with the Master Confirmation (as defined below), constitutes a
"Confirmation" as referred to in the Master Confirmation.
1. The definitions and provisions contained in the 1996
ISDA Equity Derivatives Definitions (the "DEFINITIONS") as published by the
International Swaps and Derivatives Association, Inc. and in the Master
Confirmation are incorporated into this Confirmation. In the event of any
inconsistency between those definitions and provisions and this Confirmation,
this Confirmation will govern.
2. This Confirmation supplements, forms a part of, and
is subject to the Master Terms and Conditions for Forward Transactions dated as
of June 18, 2003 (the "MASTER CONFIRMATION") between you and us. All provisions
contained in the ISDA Agreement (as modified and as defined in the Master
Confirmation) shall govern this Confirmation except as expressly modified below.
3. The particular Transaction to which this Confirmation
relates is a forward transaction, the terms of which are as follows:
Trade Date: June 24, 2003
Number of Shares: 4,200,000
Initial Forward Price: 30.92
Settlement Date: June 1, 2004
Counterparty hereby agrees (a) to check this Confirmation
carefully and immediately upon receipt so that errors or discrepancies can be
promptly identified and rectified and (b) to confirm that the foregoing
correctly sets forth the terms of the agreement between us with respect to the
particular Transaction to which this Confirmation relates by manually signing
this Confirmation and providing any other information requested herein or in the
Master Confirmation and immediately sending a facsimile transmission of an
executed copy to Equity Risk Management (Corporates) 203-719-7031, with an
executed copy sent to UBS AG, London Branch, c/o UBS Securities LLC, 677
Washington Blvd, Stamford CT 06901 USA, Attention: Equity Risk Management
(Corporates).
Yours sincerely,
UBS AG, LONDON BRANCH
By: /s/ SANJAY K. GARG
------------------------------
Name: Sanjay K. Garg
Authorized Representative
By: /s/ DANIEL HASSETT
------------------------------
Name: Daniel Hassett
Managing Director
Equities
Confirmed as of the date first above written:
SECURITY CAPITAL SHOPPING MALL BUSINESS TRUST
By: /s/ PHILIP A. MINTZ
---------------------------------------
Name: Philip A. Mintz
Title: Vice President
2
Exhibit 45
EXECUTION VERSION
SUPPLEMENTAL SECURITIES LOAN AGREEMENT
AGREEMENT dated as of June 24, 2003 between CITIGROUP GLOBAL MARKETS
INC., a broker-dealer registered pursuant to the Securities Exchange Act of
1934, as borrower ("Borrower"), SECURITY CAPITAL SHOPPING MALL BUSINESS TRUST, a
Maryland real estate investment trust, as lender ("Lender") and UBS SECURITIES
LLC ("UBS"), a dealer registered pursuant to the Securities Exchange Act of
1934, as agent for the Lender. This Supplemental Agreement supplements and
amends the Securities Lending Agency Client Agreement dated as of June 17, 2003
(the "Client Agreement") between Lender and UBS and the Securities Loan
Agreement dated as of July 26, 1998 (the "Agency Securities Loan Agreement")
between UBS and Borrower (originally entered into by their respective
predecessors, PaineWebber Incorporated and Smith Barney Inc.) with respect to
the loan of securities referred to below.
The parties hereto agree as follows:
1. LOANS OF REGENCY CENTERS CORPORATION COMMON STOCK
1.1 Subject to the terms and conditions of this Agreement and the
Agency Securities Loan Agreement and the Client Agreement, if after reasonable
efforts the Borrower is unable to borrow, on terms reasonably acceptable to
Borrower, shares of the Common Stock of Regency Centers Corporation ("Regency
Shares") from lenders reasonably acceptable to Borrower available in the market,
the Borrower may orally initiate a transaction whereby UBS, as agent for Lender,
may lend to Borrower, who along with Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Wachovia Bank, National Association and JPMorgan Chase Bank, shall
be the sole Eligible Borrowers with respect to the Regency Shares under the
Client Agreement, up to 1,500,000 Regency Shares for Borrower, which are
fully-paid or which constitute excess margin shares owned by Lender. Each such
loan shall be on the terms and conditions contained in the Agency Securities
Loan Agreement, as supplemented by this Agreement. Terms not defined herein
shall have the meanings ascribed to them in the Agency Securities Loan Agreement
and in the Client Agreement as in existence on the date hereof, as amended by
this Agreement.
2. FEE FOR LOAN.
2.1 Unless otherwise agreed, (a) the Loan Fee under Section 4.1 of the
Agency Securities Loan Agreement shall be at the rate of 20 basis points (0.20%)
per annum, computed daily on the basis of a 360-day year, and (b) the Cash
Collateral Fee under Section 4.2 of the Agency Securities Loan Agreement shall
be as displayed on the page FEDS OPEN [Index] [GO] on the BLOOMBERG Professional
Service or any successor page available on Bloomberg for determining such rate
or such other source for the US dollar Federal Funds rate designated by Borrower
and Lender.
3. TERMINATION OF THE LOAN.
3.1 Borrower may terminate a Loan on any Business Day by giving notice
to Lender and UBS and transferring the Loaned Securities to UBS before the close
of business of Borrower on such Business Day.
3.2 UBS, as agent for Lender, may terminate a Loan on a termination
date established by notice given to Borrower prior to the close of business on a
Business Day. The termination date established by a termination notice given by
UBS to Borrower shall be a date no earlier than the standard settlement date for
trades of the Loaned Securities entered into on the date of such notice, which
date shall, unless Borrower, Lender and UBS agree to the contrary, be the third
Business Day following such notice.
4. RIGHTS OF BORROWER IN RESPECT OF THE LOANED SHARES.
4.1 The rights of Borrower in respect of Loaned Securities under
Section 6 of the Agency Securities Loan Agreement are limited to the extent that
Borrower shall not have any incidents of ownership or take any action with
respect to the Loaned Securities that would cause any Loaned Securities to
become "Excess Shares" under the articles of incorporation of Regency Centers
Corporation; PROVIDED, HOWEVER, that, to the extent required to prevent any
Loaned Securities to become "Excess Shares", Borrower shall have the right, upon
written consent of the Lender (which consent shall not be unreasonably withheld)
to assign its obligations under this Agreement to any entity with a credit
rating of AA- or above or to an affiliate of the Borrower without the prior
consent of the Lender; provided further, that the Borrower may not make any such
assignment if, immediately after giving effect to the proposed assignment, there
would be a Default or potential Default of the Borrower or such proposed
assignee under the Agency Securities Loan Agreement or this Agreement.
5. MARK TO MARKET MARGIN.
5.1 For purposes of Section 8 of the Agency Securities Loan Agreement
and Sections 3(a) and 3(b) of the Client Agreement, the Required Value and the
Required Collateral Level shall be 102% of the Market Value of the Loaned
Securities, and shall be valued on an Account-by-Account basis as contemplated
by Section 8.4 of the Agency Securities Loan Agreement. Without the prior
written consent of Borrower, Lender will not permit the collateral to be held
other than in Lender's Client Account at UBS. Collateral shall consist only of
cash and shall be invested as specified by Lender and Borrower.
6. FORWARD SALE AGREEMENT.
6.1 Notwithstanding anything in the Agency Securities Loan Agreement
and this Agreement to the contrary, if Physical Settlement (as defined in the
Confirmation dated June 24, 2003 governed by a Master Terms and Conditions for
Forward Transactions between Lender and Citibank, N.A., dated as of June 18,
2003) applies under the
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Confirmation, Lender authorizes Borrower, to the extent that Citibank, N.A.
concurrently tenders payment as required thereunder, to deliver the Regency
Shares that Lender is then entitled to receive from Borrower under the Agency
Securities Loan Agreement and this Agreement to satisfy the delivery obligation
of Lender under the Confirmation with respect to that number of Regency Shares.
In such event, Lender shall return the Collateral to Borrower upon receipt of
payment by Citibank, N.A. under the Confirmation.
7. APPLICABLE LAW.
7.1 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be
performed wholly within such state, without reference to its conflicts of laws
principles or rules.
8. REPRESENTATION OF THE LENDER.
8.1 Lender hereby represents and warrants to Borrower that the
representations and warranties of Lender contained in Section 4(a) of the Client
Agreement are true and correct as of the date hereof (provided that Section
4(a)(iii) is subject to the rights of Citibank, N.A. under the Confirmation) and
shall be deemed made and repeated for all purposes at and as of all times when
any Loan entered into under the Agency Securities Loan Agreement is outstanding.
9. TERMINATION.
9.1 Lender and UBS agree that they will not terminate the Client
Agreement prior to the Settlement Date under the Confirmation (or, if Cash
Settlement applies thereunder, the last Cash Settlement Payment Date) without
the prior written consent of Borrower.
10. DEFAULT.
10.1 In the event of any default by Borrower under any Loan, UBS shall
take action only in accordance with express instructions from Lender, Section
3(f) of the Client Agreement to the contrary notwithstanding.
11. COMPENSATION OF UBS.
11.1 The compensation of UBS under the Client Agreement shall be paid
by Lender and UBS is not authorized to collect any compensation from the
principal of the Collateral or that would affect the Cash Collateral Fee payable
to Borrower.
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CITIGROUP GLOBAL MARKETS INC.
By: /s/ THOMAS J. TESAURO
----------------------------------------
Name: Thomas J.
Authorized Signatory
SECURITY CAPITAL SHOPPING MALL BUSINESS
TRUST
By: /s/ PHILIP A. MINTZ
----------------------------------------
Name: Philip A. Mintz
Title: Vice President
UBS SECURITIES LLC
By: /s/ DENISE E. KARABOTS
----------------------------------------
Name: Denise E. Karabots
Title: Executive Director
4
GUARANTY
GUARANTY (the "Guaranty"), dated as of June 24, 2003 by GENERAL
ELECTRIC CAPITAL CORPORATION, a Delaware corporation ("GE Capital") in favor of
CITIGROUP GLOBAL MARKETS INC. (the "Counterparty").
RECITALS
WHEREAS, UBS Securities LLC ("UBS") and Security Capital Shopping Mall
Business Trust, a Maryland real estate investment trust (the "Lender") have
entered into a Securities Lending Agency Client Agreement, dated as of June 17,
2003 (the "Client Agreement"), UBS and Counterparty have entered into a
Securities Loan Agreement dated as of July 26, 1998 (the "Agency Securities Loan
Agreement") (originally entered into by their respective predecessors,
PaineWebber Incorporated and Smith Barney Inc.) and UBS, Lender and Counterparty
have entered into a Supplemental Securities Loan Agreement (the "Supplemental
Agreement") providing, among other things, for the Lender to lend to
Counterparty certain securities against a pledge of collateral (the
"Transactions");
WHEREAS, the Counterparty has requested GE Capital, as the parent of
the Lender, to provide a guaranty to the Counterparty on the terms and
conditions hereinafter provided; and
WHEREAS, GE Capital is willing to enter into this Guaranty to induce
the Counterparty to enter into the Transactions with the Lender;
NOW, THEREFORE, GE Capital hereby agrees:
Section 1. GUARANTY BY GE CAPITAL.
(a) From and after the date hereof, GE Capital hereby
irrevocably and unconditionally guarantees the due and punctual payment
of all amounts payable by the Lender and UBS, as its agent, to the
Counterparty in connection with the Transactions pursuant to the terms
of the Agency Securities Loan Agreement and the Supplemental Agreement
when the same shall become due and payable, whether on scheduled
payment dates or otherwise, in each case after any applicable grace
periods or notice requirements; provided, however, that GE Capital
shall not be liable to make any payment until two Business Days (as
used herein, a "Business Day" shall refer to a day other than a
Saturday or a Sunday on which commercial banks are open for business in
the City of New York, United States of America) following receipt by GE
Capital of written notice from the Counterparty that a payment is due
thereunder (the "Notice Requirement"). GE Capital hereby agrees that
its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Agency Securities Loan
Agreement or the Supplemental Agreement; any change in or amendment
thereto, the absence of any action to enforce the same, any waiver or
consent by the Counterparty with respect
to any provision thereof; the recovery of any judgment against the
Lender or any action to enforce the same; or any other circumstances
which may otherwise constitute a legal or equitable discharge or
defense of a guarantor; provided, however, that nothing contained
herein shall be constituted to be a waiver by GE Capital of the Notice
Requirement with respect to the Agency Securities Loan Agreement or the
Supplemental Agreement and the obligations evidenced thereby or hereby.
GE Capital covenants that this Guaranty will not be discharged except
by complete performance of the obligations contained in the Agency
Securities Loan Agreement, in the Supplemental Agreement and in this
Guaranty.
(b) GE Capital shall be subrogated to all rights of the
Counterparty in respect of any amounts paid by GE Capital pursuant to
the provisions of this Guaranty; provided, however, that GE Capital
shall be entitled to enforce, or to receive any payments arising out of
or based upon, such right of subrogation with respect to any
Transaction only after the payment of all amounts owed by the Lender to
the Counterparty with respect to such Transaction have been paid in
full.
(c) This Guaranty shall continue to be effective or
reinstated, as the case may be, if at any time any payment made by the
Lender to the Counterparty with respect to a Transaction or pursuant to
the terms of the Agency Securities Loan Agreement and in the
Supplemental Agreement is rescinded or must otherwise be returned by
the Counterparty upon the insolvency, bankruptcy or reorganization by
GE Capital, the Lender or otherwise, all as though such payment had not
been made.
Section 2. MISCELLANEOUS.
(a) NOTICES. All notices to GE Capital under this Guaranty and
copies of all notices of payment failure or other breaches by UBS or
the Lender of the Client Agreement or the Agency Securities Loan
Agreement shall, until GE Capital furnishes written notice to the
contrary, be mailed or delivered to GE Capital at 201 High Ridge Road,
Stamford, Connecticut 06927-9400, and directed to the attention of the
Senior Vice President-Corporate Treasury and Global Funding Operation
of GE Capital.
(b) GOVERNING LAW. This Guaranty shall be construed and
enforced in accordance with, and governed by, the laws of the State of
New York, United States of America. GE Capital hereby irrevocably
consents to, for the purposes of any proceeding arising out of this
Guaranty, the exclusive jurisdiction of the courts of the State of New
York and the United States District Court located in the borough of
Manhattan in New York City.
(c) INTERPRETATION. The headings of the sections and other
subdivisions of this Guaranty are inserted for convenience only and
shall not be deemed to constitute a part hereof.
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(d) ATTORNEY'S COST. GE Capital agrees to pay all reasonable
attorney's fees and disbursements and all other reasonable and actual
costs and expenses which may be incurred by the Counterparty in the
enforcement of this Guaranty of the Agency Securities Loan Agreement
and the Supplemental Agreement.
(e) NO SET-OFF. The Counterparty shall be deemed to have
waived any right to set-off, combine, consolidate, or otherwise
appropriate and apply, any indebtedness at any time held or owing by
the Counterparty against, or on account of, any obligations or
liabilities of GE Capital under this Guaranty. In addition, GE Capital
agrees to waive any right to set-off, combine, consolidate, or
otherwise appropriate and apply any obligations or liabilities of GE
Capital under this Guaranty against, or on account of, any indebtedness
at any time held or owing by the Counterparty.
(f) CURRENCY OF PAYMENT. Any payment to be made by GE Capital
shall be made in the same currency as designated for payment in the
Agency Securities Loan Agreement and the Supplemental Agreement and
such designation of the currency of payment is of the essence.
(g) TRANSFER. Neither this Guaranty nor any interest or
obligation in or under this Guaranty may be transferred (whether by way
of security or otherwise) by GE Capital or the Counterparty without the
prior written consent of the other, except that the Counterparty may,
without the consent of GE Capital, transfer its interest in this
Guaranty to any person or entity to which any interest or obligation in
or under the Agency Securities Loan Agreement or the Supplemental
Agreement or any Transaction is transferred in a manner that is not
inconsistent with the Agency Securities Loan Agreement or the
Supplemental Agreement.
GENERAL ELECTRIC CAPITAL CORPORATION
By:
----------------------------------------
Vice President
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ACKNOWLEDGEMENT AND AGREEMENT
CITIGROUP GLOBAL MARKETS INC. HEREBY ACKNOWLEDGES AND CONSENTS TO THE PROVISIONS
OF THE FOREGOING GUARANTY.
CITIGROUP GLOBAL MARKETS INC.
By: ----------------------------
Title:
4
EXHIBIT 46
SECURITIES LENDING AGENCY CLIENT AGREEMENT
THIS AGREEMENT is made as of the 17TH DAY OF JUNE, 2003 by and between
each of the party or parties listed as Clients on Exhibit 1 to this Agreement
(each a "Client") and UBS Securities LLC ("UBS"). Capitalized terms not
otherwise defined shall have the meanings set forth in Section 14.
Each Client and UBS, intending to be legally bound, agree as follows:
1. APPOINTMENT OF UBS; TERMS OF LOANS.
(a) (i) Each Client hereby authorizes and appoints UBS, and
UBS agrees to act, as Client's agent to effect Loans of Available Securities to
Eligible Borrowers and to provide related administrative services to Client, all
pursuant to the terms and conditions of this Agreement. During the term of this
Agreement, UBS may from time to time, in its sole discretion, contact Eligible
Borrowers on behalf of any Client and lend Available Securities belonging to
that Client ("Lending Client") to those Eligible Borrowers. Before committing to
lend Available Securities to an Eligible Borrower, UBS shall make a reasonable
investigation and determination that the Borrower is creditworthy, and that UBS
has received no notice from the Client or the Custodian that any of the
Available Securities to be lent have been sold.
(ii) The initial Eligible Borrowers for each Client are
listed on Exhibit 2 hereto. Exhibit 2 may be amended by UBS from time to time,
PROVIDED, however, that no such amendment adding an Eligible Borrower shall be
effective with respect to any Client unless approved by that Client, and
PROVIDED FURTHER, that UBS shall amend Exhibit 2 to delete any Eligible Borrower
with respect to any Client promptly following written notice from that Client
directing UBS to do so.
(b) Each Loan shall be made pursuant to an agreement
("Borrowing Agreement") substantially in a form attached as Schedule A hereto
and a supplemental borrower agreement ("Supplemental Agreement") substantially
in a form attached as Schedule B hereto or in such other form as may be approved
by from time to time by Client. The form of the Borrowing Agreement used with
respect to a Loan made on behalf of any Client shall not be amended by UBS in
any material respect except with the prior written consent of that Client. UBS
shall disclose fully to Eligible Borrowers that UBS acts as agent for its
clients and not as principal.
(c) Each Loan shall be terminable by UBS on behalf of Lending
Client or the Borrower upon notice to the other party. At its sole discretion,
UBS may notify any Borrower of the termination of any Loan at any time. UBS will
notify the Borrower of the termination of any Loan on the same day that it is
directed to terminate the Loan by Lending Client if UBS receives such direction
by the Termination Notice Time on a Business Day; if the direction to terminate
is received by UBS after the Termination Notice Time, UBS will notify the
Borrower of the termination of the Loan on the next Business Day. In the case of
notice by UBS, the termination date so established will be no later than: (i) in
the case of
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Loans of Government Securities, the same Business Day as such notice, (ii) in
the case of Foreign Securities, the standard settlement date for trades of the
Loaned Securities entered into on the date of such notice in the principal
market for such securities, or (iii) in all other cases, the third Business Day
following such notice.
2. Authority of UBS with Respect to Loans.
(a) UBS is hereby authorized:
(i) to make, execute, acknowledge and deliver Borrowing
Agreements and any and all other documents or agreements of transfer and
conveyance and any and all other instruments that may be necessary or
appropriate to effect a transfer of Available Securities to Eligible Borrowers
pursuant to a Borrowing Agreement or to complete any Loan; and
(ii) to exercise all of the rights of Lending Client
under the Borrowing Agreement and to do all acts, whether or not expressly
authorized, which it may deem reasonably necessary or proper for the protection
of the Collateral held thereunder.
(b) Each Client acknowledges and agrees that:
(i) if Client's Available Securities or Collateral are,
or under the terms of this Agreement are required to be, held by its Custodian,
Client shall direct its Custodian to take such actions as are necessary or
appropriate to enable UBS to perform its obligations hereunder or under any
Borrowing Agreement;
(ii) UBS shall have full discretion regarding the
selection of the particular Eligible Borrowers to whom Loans of Available
Securities may be made and as to the selection of the particular Available
Securities loaned pursuant to any Loan;
(iii) there is no assurance that Loans will be made at any
time;
(iv) UBS may perform securities lending activities for
other clients of UBS, including clients that are, or that are advised or managed
by, its Affiliates, and UBS may allocate securities lending opportunities among
any or all of its clients using such reasonably impartial methods as UBS may
follow from time to time; and
(v) Client waives the right to vote Loaned Securities or
to provide any consent or take any similar action with respect to any Loaned
Securities. Notwithstanding the foregoing, under the terms of the Borrowing
Agreement, Client shall be entitled to receive any payment made in respect of
any consent solicitation with respect to its Loaned Securities.
(vi) Should a sale, voluntary corporate action, or cash
or non-cash distribution or other action requiring Client selection or
notification occur in respect of any Loaned Securities, Client shall provide UBS
with timely advice of such action.
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(c) If an installment, call or rights issue becomes payable on,
or in respect of any, Loaned Securities, UBS shall use reasonable efforts to
ensure that any timely instructions from Lending Client are complied with, but
UBS shall not be required to make any payment unless Lending Client has first
provided funds to make such payment.
(d) Notwithstanding anything to the contrary herein, UBS agrees
that, with respect to any Collateral provided or to be provided by any Eligible
Borrower for any Loan, UBS will not, without Client's express written
authorization to do so, agree to accept or allow the substitution of any
Collateral other than Eligible Collateral. For purposes of this Agreement, the
dollar amount of any cash transferred to the Client Account by the Eligible
Borrower as Eligible Collateral, shall be deemed to be such Eligible
Collateral's "Market Value" at all times. UBS shall, as permitted under section
8.4 of the Borrowing Agreement, agree with all Borrowers to mark, and shall
mark, values to market on an Account by Account basis.
3. COLLATERAL; RESPONSIBILITIES OF UBS AND CLIENT.
(a) Under the terms of each Loan, Borrower shall be required to
transfer to UBS or to the Client Account, at or before the inception of the
Loan, Eligible Collateral having a Market Value (determined as of the close of
trading on the preceding Business Day) at least equal to 105% of the Market
Value of any Loaned Securities that are Foreign Securities and 102% of all other
Loaned Securities (the "Required Collateral Level").
(b) UBS shall determine the Market Value of the Loaned
Securities and the Eligible Collateral for each Loan on each Business Day. Under
the terms of each Loan, if at any time the Market Value of the Eligible
Collateral for any Loan is less than 101% of the Market Value of the respective
Loaned Securities (104% if the Loaned Securities are Foreign Securities), then
the Borrower shall be required to transfer to UBS or the Client Account, on or
before the next Business Day, additional Eligible Collateral sufficient to
increase the Market Value of the Eligible Collateral to at least the Required
Collateral Level. For purposes of this calculation, both a decrease in the value
of non-cash collateral and/or an increase in the Market Value of the Loaned
Securities may require additional Eligible Collateral to be transferred. In
accordance with general market practice, UBS will cause all additional
Collateral collected from Borrower, to be transferred to the Client Account, to
the extent that UBS receives it.
(c) (i) If the Collateral Guidelines provide that Collateral
for Client is to be held in its Client Account, UBS shall transfer any
Collateral received by it with respect to Loans for that Client to its Client
Account. If UBS receives such Collateral prior to 3:00 p.m., Eastern time (or,
in the case of cash Collateral, 5:00 p.m., Eastern time), such transfer shall be
made on the same Business Day that the Collateral is transferred to UBS; if such
Collateral received later than that time, such transfer shall be made on the
next Business Day.
(ii) If the Collateral Guidelines do not provide that
Collateral for Client is to be held in its Client Account, UBS shall remit the
net earnings on cash Collateral for such Client to its Client Account on a
monthly basis, within 10 Business Days after the end of the month, and shall use
its best efforts to credit to such Client Account any loan fees paid by
Borrowers to UBS in
3
respect of any Loan on the dates that such fees are received by UBS. In each
case, the amount credited to such Clients may be reduced by the amount of any
compensation due to UBS pursuant to Section 6.
(d) Unless otherwise indicated in this Agreement or the
exhibits hereto, or unless otherwise agreed by Client and UBS, UBS shall invest,
or shall arrange for the investment of, all cash Collateral in accordance with
the Investment Guidelines. All investments of cash Collateral shall be for the
account of the Lending Client and shall be solely at the Lending Client's risk.
To the extent consistent with the Investment Guidelines, cash Collateral may be
invested in repurchase agreements with UBS or in investment companies or other
commingled accounts advised or managed by UBS or its Affiliates, and Client
consents to the retention by UBS and its Affiliates of any advisory or other
fees paid by such accounts. If UBS arranges for cash Collateral to be invested
by an investment manager or adviser (other than UBS but including any advisory
Affiliate of UBS) approved by Client, Client will be responsible for any
investment management or advisory fees charged by that investment manager or
adviser.
(e) UBS shall give appropriate and timely directions to Lending
Client or its Custodian with respect to the transfer and re-transfer of any and
all Loaned Securities, Collateral maintained in the Client Account and payments,
distributions and proceeds thereon or thereof, and if the Collateral is
maintained in the Client Account, with respect to the payment of any loan
rebates to Borrowers, and each Lending Client will direct its Custodian to
timely execute such directions.
(f) In the event of any default by any Borrower in respect of
any Loan, UBS shall be responsible for notifying the Lending Client, and UBS
shall take any and all actions in accordance with the Borrowing Agreement
necessary or appropriate to protect the interest of the Lending Client in
respect of the Loan, including without limitation, liquidating or, if the
Collateral is maintained in the Client Account, directing Lending Client or its
Custodian to liquidate, the Collateral.
(g) Except as provided in paragraph (h), UBS shall arrange for
an amount equal to any interest, dividends or other distributions paid on Loaned
Securities to be credited to the appropriate Client Account in accordance with
the compensation schedule set forth in Exhibit 4 hereto.
(h) Non-cash distributions on Loaned Securities in the nature
of stock splits or stock dividends shall be added to the Loan and become Loaned
Securities; PROVIDED that a Lending Client may, by giving UBS ten (10) Business
Days' notice prior to the date of such non-cash distribution, direct UBS to
request that the Borrower deliver such non-cash distributions to its Client
Account, in which case UBS shall arrange for such non-cash distribution to be
credited to that Client Account as soon as practicable.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Each Client represents, warrants and covenants as follows:
4
(i) this Agreement constitutes the legal, valid and
binding obligation of Client, enforceable against it in accordance with its
terms except as enforcement may be limited by bankruptcy, insolvency or similar
laws, or by equitable principles relating to or limiting creditors' rights
generally;
(ii) the execution, delivery and performance by Client of
this Agreement, execution of each Borrowing Agreement by UBS on behalf of
Client, and UBS's entering into Loans under Borrowing Agreements on behalf of
Client, have been duly and validly authorized by Client, and Loans made in
accordance with the terms hereof will comply with all laws and regulations,
including those of securities regulatory and self-regulatory organizations,
applicable to Client;
(iii) Client owns, and will own at the time that any Loan
is outstanding, all Available Securities free and clear of any lien or
encumbrance;
(iv) Client has made its own determination as to the tax
treatment of any dividends, remuneration or other funds received hereunder;
(v) Client and any party serving as an investment
consultant to Client have approved the lending of Available Securities, have
determined that each of the Eligible Borrowers, the Eligible Collateral and the
Investment Guidelines (as the same may be amended pursuant to the terms hereof)
are appropriate for Loans by Client hereunder and have directed UBS to comply
with the same, and have determined that lending the Available Securities in
accordance with the terms hereof is an appropriate activity for Client,
consistent with its investment objectives and policies;
(vi) the Available Securities are not "plan assets"
within the meaning of ERISA, or if the Available Securities are such plan
assets, a Loan of the Available Securities to an Eligible Borrower would not
constitute a prohibited transaction for purposes of ERISA; and
(vii) no Loan of the Available Securities will violate any
statute, regulation, rule, order, judgment or agreement binding on Client or any
of its assets.
(b) UBS represents, warrants and covenants to each Client as
follows:
(i) this Agreement constitutes a legal, valid and
binding obligation of UBS, enforceable against it in accordance with its terms
except as enforcement may be limited by bankruptcy, insolvency or similar laws,
or by equitable principles relating to or limiting creditors' rights generally;
(ii) the execution, delivery and performance by UBS of
this Agreement and of each Borrowing Agreement, and UBS's entering into Loans
under Borrowing Agreements on behalf of Client, have been duly and validly
authorized by UBS, and Loans made in accordance with the terms hereof will
comply with all laws and regulations relating to the lending of securities and
applicable to UBS as lending agent; and
5
(iii) UBS has the power to execute and deliver this
Agreement, to enter into the transactions contemplated hereby and to perform its
obligations hereunder, and it has taken all necessary action to authorize such
execution, delivery and performance.
(c) Each of the above representations and warranties shall be
deemed made and repeated for all purposes at and as of all times when any Loan
entered into under the Borrowing Agreement is outstanding.
(d) Each Client and UBS agree that, under the terms of this
Agreement, Client retains ultimate authority with respect to lending Client's
securities and has directed UBS to lend Available Securities in accordance with
the terms hereof. Each Client and UBS further agrees that unless applicable law
requires otherwise, UBS is not, and shall not be considered to be, solely by
virtue of its role hereunder, an investment adviser for Client.
5. STATEMENTS; RECORDS. UBS shall maintain current and accurate
records of the Loans as required by applicable regulations and shall provide
each Client with monthly statements detailing all deliveries and receipts of
Loaned Securities and Collateral, all transactions in the Client Account made at
the direction of UBS, all fees received and income earned from the Collateral
and Loaned Securities, all fees and other amounts paid to each Borrower or
others, and such other information as Client may reasonably request.
6. COMPENSATION OF UBS. In consideration of the services to be
provided by UBS hereunder, UBS shall be entitled to compensation as set forth in
Exhibit 4. UBS is hereby authorized to charge such compensation and
reimbursements against and collect the same from the revenues derived from
securities lending activities or to direct the Custodian to pay UBS such
compensation and reimbursements on a monthly basis, within 10 business days
after the end of each month. The fees paid to UBS hereunder are solely in
consideration of securities lending services rendered by it and are in addition
to any other fees or compensation to which it may be entitled for services
rendered for Client under other agreements.
7. MODIFICATION AND TERMINATION OF AGREEMENT.
(a) This Agreement is a continuing agreement and shall remain in full
force and effect until terminated in accordance with this Section. This
Agreement may be modified with respect to any Client at any time upon mutual
written agreement of UBS and that Client, expressly referring to this Agreement
and indicating an intention to effect such modification. This Agreement also may
be terminated at any time by UBS or any Client upon fourteen (14) days prior
written notice to the other party.
(b) Following any termination of this Agreement but only with respect
to the Client or Clients with respect to which such termination is effective,
UBS shall:
(i) immediately cease making new Loans;
(ii) terminate, as promptly as possible, any outstanding Loans,
but shall continue to administer any such outstanding Loans as necessary to
effect their termination, including,
6
without limitation, (A) the return to Borrowers of Collateral on Loans as to
which Loaned Securities are returned to UBS or to the Client Account and as to
which the Borrower is not in default, and (B) the coordination of the
liquidation of Collateral, all in the manner and on the terms permitted under
the Borrowing Agreements and deemed necessary or appropriate by UBS; and
(iii) remit and deliver, or arrange for remittance and delivery,
to the Client Account all securities, earnings and other items due to each
Lending Client.
(c) Regardless of any agreement as to, or the receipt of any notice
of, termination and the cessation of lending, this Agreement shall not entirely
terminate with respect to any Lending Client until all Loans have been closed,
all Collateral liquidated or returned, all deliveries and remittances due the
Client have been made, all obligations and undertakings (including, without
limitation those set forth in Sections 8(d) and 13(b) hereof) of UBS to Client
have been fulfilled and satisfied, and all final reports required hereunder have
been made.
8. STANDARD OF CARE; INDEMNIFICATION.
(a) Subject to the requirements of ERISA with respect to Loans
involving "plan assets" within the meaning of ERISA, and except as otherwise
provided for in Sections 8(c) and 13(b) hereof, UBS shall not be liable for any
loss or damage suffered or incurred by any Client in connection with any Loan or
the administration and operation of UBS's securities lending program, whether or
not resulting from any act or omission to act hereunder or otherwise, unless and
except to the extent such loss or damage has been determined by a final judgment
or order of a court of competent jurisdiction to have arisen out of UBS's own
breach of this Agreement, the Borrower Agreement or the Supplemental Agreement,
or UBS's own negligence or willful misconduct. Notwithstanding anything in this
Agreement to the contrary, including any losses covered under paragraphs 8(d)
and 13(b) of this Agreement, UBS shall not be liable to any Client for any
special or indirect losses or damages which the Client may incur or suffer by or
as a consequence of UBS's performance of, or failure to perform, the services to
be provided hereunder, whether or not the likelihood of such losses or damages
was known by UBS, nor shall UBS be liable for any losses or damages resulting
from UBS's having complied with the Investment Guidelines or with any other
directions from, or requirements of, the Client.
(b) UBS shall indemnify Client in the event a Borrower defaults on any
Loan by failing to return equivalent securities when due, by either (i)
replacing in Client's account the unreturned Loaned Securities with other
securities of the same issuer, class and denomination (or the equivalent
securities in the event of an intervening corporate change) or (ii) at UBS's
option, paying the Client federal funds equal to the Market Value of the
unreturned Loaned Securities as of the date of the Borrower default. UBS shall
also be responsible for any interest or dividends accrued on the Loaned
Securities between the date of the Borrower default and the date on which the
actions in clauses (i) or (ii) have been completed, together with all brokerage
commissions, fees and stock transfer taxes incurred by UBS in replacing the
unreturned Loaned Securities. UBS may utilize Collateral proceeds and all income
generated by the Loan, to the extent thereof, including income and gains from
the investment of cash Collateral, toward the satisfaction of the
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foregoing obligations, and shall be subrogated and succeed to all of the
Client's rights against the Borrower to the extent of any such payment, loss or
expense in excess thereof.
(c) UBS shall not be liable to any Client for any investment losses
with respect to cash Collateral. Each Client authorizes UBS to charge the Client
Account for any amounts payable by such Client pursuant to this Section 8(b).
(d) Client shall indemnify UBS and hold it harmless from and against
any and all liability, loss, damages and claims, including attorneys' fees and
all other expenses reasonably incurred in its defense, to which UBS shall be
subjected by reason of UBS's actions, or failure to act in accordance with this
Agreement; provided however that Client's aforesaid obligation to indemnify and
hold UBS harmless shall not apply with respect to any liability, loss, damages
or claims (including attorneys' fees and other expenses) (i) arising from or
related to any action or inaction by UBS that is in violation of, or constitutes
a breach of, or is inconsistent with, UBS's obligations under, this Agreement, a
Borrowing Agreement or a Supplemental Agreement, or that is determined by a
court of competent jurisdiction to constitute negligence or willful misconduct
on the part of UBS, or (ii) if Available Securities are "plan assets" within the
meaning of ERISA, but only to the extent that UBS acts as a fiduciary with
respect to such plan assets, to a breach of fiduciary duty by UBS under ERISA.
9. GOVERNING LAW; JURISDICTION. This Agreement shall be construed in
accordance with the laws of the State of New York without giving effect to the
conflict of law principles thereof.
10. MISCELLANEOUS.
(a) If Exhibit 1 specifies that a party identified thereon as a Client
is acting on behalf of one or more of its portfolios, series, sub-trusts or
sub-accounts (each, a "portfolio") that are also identified on Exhibit 1, each
such portfolio shall be deemed to be a Client for all purposes under this
Agreement.
(b) Notwithstanding any other provision of this Agreement, the parties
agree that, if more than one Client (including any portfolio) is identified on
Exhibit 1:
(i) the relationships and agreements set forth in this
Agreement between each Client and UBS shall be several, separate and distinct
from those between any other Client and UBS, to the same effect as if that
Client had executed a separate agreement in the form hereof with UBS; and
(ii) the assets and liabilities of each Client are separate and
distinct from the assets and liabilities of each other Client, and no Client
shall be liable or shall be charged for any debt, obligation or liability of any
other Client under this Agreement.
(c) With respect to each Client that is a trust, notice is hereby
given that the obligations of this instrument are not binding upon any of the
trustees of Client individually but are binding solely upon the assets and
property of Client.
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(d) In the event any provision of this Agreement shall be held illegal
or invalid for any reason, such illegality or invalidity shall not affect the
remaining provisions of this Agreement, and this Agreement shall be construed
and enforced as if such illegal or invalid provision had never been contained
herein.
(e) This Agreement (including the exhibits and schedules attached
hereto) constitutes the entire agreement between the parties and supersedes any
prior agreements between the parties with respect to the subject matter hereof.
This Agreement shall not be assigned by either party without the prior written
consent of the other party.
11. NOTICES. All notices, reports and statements shall be mailed, sent
by express delivery service, or facsimile transmitted to the parties at the
following addresses and facsimile telephone numbers and shall be effective upon
receipt thereof:
TO UBS:
Address: UBS Securities LLC
265 Franklin Street
Boston, Massachusetts 02110
Attention: Global Portfolio Lending
Fax: (617) 439-8215
TO CLIENT:
Address: c/o GE Capital Real Estate
292 Long Ridge Road
Stamford, CT 06927
Attention: Philip Mintz
Fax: (203) 585-0179
Copies to: GE Capital Real Estate
292 Long Ridge Road
Stamford, CT 06927
Attention: Legal Operation/Security Capital
Fax: 203-357-6768
12. SECURITIES INVESTORS PROTECTION ACT OF 1970 NOTICE.
EACH CLIENT IS HEREBY ADVISED AND ACKNOWLEDGES THAT THE PROVISIONS OF THE
SECURITIES INVESTOR PROTECTION ACT OF 1970 MAY NOT PROTECT CLIENT WITH RESPECT
TO THE LOAN OF SECURITIES HEREUNDER AND THAT, THEREFORE, THE COLLATERAL
DELIVERED TO CLIENT MAY CONSTITUTE
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THE ONLY SOURCE OF SATISFACTION OF BORROWER'S OBLIGATION IN THE EVENT THE
BORROWER FAILS TO RETURN THE SECURITIES.
13. DEFINITIONS. For the purposes hereof:
(a) "Affiliate" shall mean any entity, which controls, is controlled
by, or is under common control with another entity.
(b) "Available Securities" shall mean with respect to any Client and
on any date, those securities held or maintained in its Client Account, other
than those securities that Client has designated by written notice to UBS as not
being available for Loans.
(c) "Borrower" shall mean, with respect to any Loan, the party that is
a borrower under a Borrowing Agreement.
(d) "Borrowing Agreement" shall have the meaning set forth in Section
1.
(e) "Business Day" shall mean any day other than a day on which the
New York Stock Exchange, Inc. is closed for trading; PROVIDED, however, that for
purposes of the notice required to terminate any Loan, "Business Day" shall have
the meaning established under the related Borrowing Agreement.
(f) "Client Account" shall mean, with respect to any Client, the
account specified in Exhibit 3.
(g) "Collateral" shall mean all securities and other items of property
pledged as collateral for a Loan.
(h) "Collateral Guidelines" shall mean, with respect to any Client,
the guidelines for Eligible Collateral and for the investment of cash Collateral
set forth in Exhibit 5.
(i) "Custodian" shall mean, with respect to any Client, the entity
identified as such in Exhibit 3.
(j) "Eligible Borrower" shall mean, with respect to any Client and on
any date, any entity to which Available Securities may be loaned on behalf of
that Client, as listed in Exhibit 2, as the same may be amended from time to
time by UBS and approved in writing by Client.
(k) "Eligible Collateral" shall mean, with respect to any Lending
Client and subject to such limitations as are specified in the Collateral
Guidelines, Collateral consisting of (i) cash, (ii) Government Securities; (iii)
Letters of Credit; and (iv) such other securities, instruments or investment
property specified in the Collateral Guidelines.
(l) "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may now or hereafter be amended.
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(m) "Foreign Securities" shall mean securities that are denominated in
a currency other than United States dollars and that are principally cleared and
settled outside of the United States.
(n) "Government Securities" shall mean government securities as
defined in Section 3(a)(42)(A)-(C) of the Securities Exchange Act of 1934, as
amended.
(o) "Lending Client" shall have the meaning set forth in Section 1.
(p) "Letter of Credit" shall mean an irrevocable, unconditional,
stand-by letter of credit, in form and substance satisfactory to the Lending
Client, issued by a bank (not affiliated with the Borrower under the related
Loan) listed in the Collateral Guidelines.
(q) "Loan" shall mean a loan of Available Securities pursuant to this
Agreement.
(r) "Loaned Securities" shall mean, with respect to any Loan, the
securities loaned by UBS on behalf of a Lending Client.
(s) "Market Value" shall have the meaning assigned in the applicable
Borrowing Agreement.
(t) "Required Collateral Level" shall have the meaning set forth in
Section 3(a).
(u) "Termination Notice Time" shall mean: (i) with respect to a
direction by Client to UBS to terminate a Loan of Foreign or Government
Securities, 9:45 a.m., Eastern time, on a Business Day; and (ii) with respect to
a direction by Client to UBS to terminate any other Loan, 11:30 a.m., Eastern
time, on a Business Day.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereto duly authorized effective as of
the day and year first above written.
UBS Securities LLC
BY: /s/ DENISE E. KARABOTS
----------------------------------
NAME: Denise E. Karabots
TITLE: Executive Director
Client
BY: /s/ PHILIP A. MINTZ
----------------------------------
NAME: Philip A. Mintz
TITLE: Vice President
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EXHIBIT 1
(LISTING OF CLIENTS)
Security Capital Shopping Mall Business Trust
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EXHIBIT 2
(ELIGIBLE BORROWERS)
CLIENT APPROVED CLIENT APPROVED
BORROWERS: CREDIT LIMITS (MILLIONS):
Citigroup Global Markets, Inc $ 250
JPMorgan Chase Bank $ 250
Merrill, Lynch, Pierce, Fenner
& Smith Incorporated $ 250
Wachovia Bank, National Association $ 250
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EXHIBIT 3
(CLIENT ACCOUNT AND CUSTODIAN INFORMATION)
UBS Financial Services Inc.
590 Madison Avenue
23rd Floor
New York, NY 10022
Acct. # UT28179
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EXHIBIT 4
(COMPENSATION SCHEDULE)
A twenty (20) basis point (bp) loan fee on all loans made pursuant to
this agreement will be distributed on the following schedule:
Security Capital Shopping Mall Business Trust -14 bps
UBS Securities LLC - 6 bps
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EXHIBIT 5
(COLLATERAL GUIDELINES)
1. FOR EACH LENDING CLIENT, COLLATERAL SHALL BE HELD (CHECK APPROPRIATE
BOX):
[X] by UBS Financial Services Inc. for the account of Lending
Client;
[_] in the Client Account;
2. FOR EACH CLIENT, ELIGIBLE COLLATERAL SHALL INCLUDE:
A. CASH IN THE FOLLOWING CURRENCIES:
YES NO
(i) U.S. Dollars [X] [_]
(ii) Other:___________ [_] [X]
B. U.S. GOVERNMENT SECURITIES [_] [X]
Securities issued or guaranteed by the United
States government or any agency or instrumentality
thereof ("U.S. government securities")
3. FOR EACH CLIENT, CASH COLLATERAL MAY BE INVESTED IN AS FOLLOWS:
PERMISSIBLE INVESTMENTS
Asset Backeds
Bankers Acceptances (Domestic and Yankee)
Certificates of Deposit (Domestic and Yankee)
Commercial Paper
Euro Time Deposits (Banks that have been approved by Client)
Funding Agreements
Master Notes
Money Market Funds
Money Market Preferreds
Mortgages
Traditional/Non-Traditional Repurchase/Reverse Repurchase Agreements
Trust Certificates
UBS Private Money Market Fund LLC
U.S. Corporate Securities
U.S. Treasuries and Agencies
Yankee Debt
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