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SECURITIES AND EXCHANGE COMMISSION
UNITED STATES
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) August 4, 2004
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REGENCY CENTERS CORPORATION
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(Exact name of registrant as specified in its charter)
Florida 001-12298 59-3191743
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
121 West Forsyth Street, Suite 200 32202
Jacksonville, Florida -----
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: (904)-598-7000
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Not Applicable
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(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
[_] Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230 .425)
[_] Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12)
[_] Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
[_] Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c))
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ITEM 3.03. Material modifications to rights of security holders
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On August 4, 2004, Regency Centers Corporation ("Regency" or the
"Company") priced 5,000,000 depositary shares (the "Depositary Shares"), each
representing 1/10 of a share of Regency's 7.25% Series 4 Cumulative Redeemable
Preferred Stock (the "Series 4 Preferred Stock"). The settlement date is August
31, 2004, and the Depositary Shares and Series 4 Preferred Stock will be issued
on that date. The Depositary Shares will be redeemable at par at Regency's
election on or after August 31, 2009, will pay a 7.25% annual dividend and will
have a liquidation value of $25 per depositary share. With respect to the
payment of dividends and amounts upon liquidation, the Series 4 Preferred Stock
will rank equally with Regency's Series 3 Preferred Stock and will rank senior
to Regency's common stock. Unless full dividends on the Series 4 Preferred
Stock, the Series 3 Preferred Stock and any other class of stock ranking on
parity with such preferred stock as to dividends have been paid for all past
dividend periods, no distribution may be declared or paid on Regency's common
stock or any other capital shares that rank junior to the Series 4 Preferred
Stock as to dividends. In the event of Regency's liquidation, dissolution or
winding up, the holders of the Series 4 Preferred Stock are entitled to be paid
out of Regency's assets legally available for distribution to its shareholders a
liquidation preference of $250 per share (equivalent to $25 per depositary
share), plus an amount equal to any accumulated and unpaid dividends to the date
of payment (and the holders of the Series 3 preferred stock and any other class
of stock ranking on parity with such preferred stock as to liquidation are
entitled to receive their respective liquidation preferences at the same time)
before any distribution of assets is made to holders of Regency's common stock
or any other capital shares that rank junior to the Series 4 Preferred Stock as
to liquidation preference.
ITEM 8.01. OTHER EVENTS
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Regency entered into an Underwriting Agreement with Global Markets
Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Wachovia Capital
Markets, LLC with respect to the Depositary Shares on August 4, 2004 (the
"Underwriting Agreement"). Regency expects to deliver the depositary shares
against payment for the depositary shares on or about August 31, 2004, which is
the 19th business day following the date of pricing of the Depositary Shares.
This Form 8-K is being filed in order to incorporate by reference into Regency's
Registration Statement on Form S-3 the Underwriting Agreement and the other
required exhibits.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS
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C. Exhibits:
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The exhibits listed below relate to the Series 4 Preferred Stock and
Registration Statement No. 333-37911 on Form S-3 of Regency Centers Corporation,
and are filed herewith for incorporation by reference in such Registration
Statement.
1.6 Underwriting Agreement dated August 4, 2004 among Regency
Centers Corporation and Citigroup Global Markets Inc., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Wachovia
Capital Markets, LLC
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4.6 Form of Deposit Agreement dated August 31, 2004 among Regency
Centers Corporation and Wachovia Bank, National Association
4.7 Form of depositary receipt
3.3 Amendment to the Company's Articles of Incorporation
Designating the Preferences, Rights and Limitations of 500,000
Shares of 7.25% Series 4 Cumulative Redeemable Preferred
Stock, effective August 11, 2004.*
3.4 Restated Articles of Incorporation of the Company*
5.1 Opinion of Foley & Lardner LLP as to the legality of the
securities to be issued
8.1 Opinion of Foley & Lardner LLP as to the tax aspects of the
offering
12.1 Statement regarding computation of earnings to fixed charges
ratio
23.1 Consent of Foley & Lardner LLP (included in Opinions filed as
Exhibits 5.1 and 8.1)
* Filed as an exhibit to the Company's Form 8-A filed August 11, 2004 and
incorporated herein by reference.
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
REGENCY CENTERS CORPORATION
(registrant)
August 27, 2004 By: /s/ J. Christian Leavitt
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J. Christian Leavitt, Senior Vice
President, Finance and Principal
Accounting Officer
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Regency Centers Corporation
5,000,000 Depositary Shares
each representing one-tenth (1/10th) fractional interest
of a share of 7.25% Series 4
Cumulative Redeemable
Preferred Stock
($0.01 par value)
Underwriting Agreement
New York, New York
August 4, 2004
Citigroup Global Markets Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Wachovia Capital Markets, LLC
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013,
As Representatives of the several Underwriters,
Ladies and Gentlemen:
Regency Centers Corporation, a Florida corporation (the
"Company"), which is the general partner of Regency Centers, L.P., a Delaware
limited partnership (the "Partnership"), proposes to sell to the several
underwriters named in Schedule I hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, 5,000,000 Depositary Shares ("
Depositary Shares"), each representing one-tenth (1/10th) fractional interest of
a share of 7.25% Series 4 Cumulative Redeemable Preferred Stock, $0.01 par
value, of the Company (the "Preferred Stock") deposited with Wachovia Bank,
National Association (said shares of Preferred Stock to be issued and sold by
the Company and said Depositary Shares 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
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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. The Company represents
and warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(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 333-37911) 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 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).
(b) 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), 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,
the Prospectus (together with any amendment or supplement thereto) will not,
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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 information furnished in writing to the Company by or on
behalf of any Underwriter 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;
(c) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in conformity
with the information furnished in writing to the Company by an Underwriter
through the Representatives expressly for use in the 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 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, the payment of earn-outs
pursuant to contractual commitments and the issuance of Partnership units in
partial consideration for the purchase of an asset in June 2004) 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 (other than
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the increase in unsecured debt of approximately $25 million since March 31,
2004) 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;
(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 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 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;
(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 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
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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 Securities have been duly and validly authorized
and, when issued and delivered and paid for by the underwriters pursuant to this
Agreement, will be validly issued, fully paid and non-assessable; and the
Securities conform to the description thereof contained in the Registration
Statement and the Prospectus, as amended or supplemented; upon issuance of
depositary receipts ("Receipts") evidencing Depositary Shares against the
deposit of shares of Preferred Stock in accordance with the provisions of the
Deposit Agreement, to be entered into on the Closing Date between the Company,
Wachovia Bank, National Association and the holders of Receipts from time to
time (the "Deposit Agreement"), such Receipts will be duly and validly issued
and the persons in whose names the Receipts are registered will be entitled to
the rights specified therein and in the Deposit Agreement;
(i) This Agreement has been duly authorized, executed and
delivered by the Company, and the Deposit Agreement has been duly authorized
and, when executed and delivered by the Company, will be a valid, binding and
enforceable obligation of the Company;
(j) None of the transactions contemplated by this Agreement
and the Deposit Agreement 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 Securities;
(l) The execution and delivery by the Company of this
Agreement, the compliance by the Company with all of the provisions hereof and
of the Deposit Agreement and the consummation of the transactions by the Company
herein and therein 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 and therein contemplated, will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, (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 or
By-laws of the Company, the Certificate of Limited Partnership or partnership
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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 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 and the Deposit
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;
(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 Registration Statement
and the Prospectus under the captions "Capital Stock", "Description of Common
Stock", "Description of Preferred Stock", "Description of Depositary Shares" and
"Plan of Distribution" and the statements set forth in the Prospectus Supplement
under the captions "Certain Federal Income Tax Considerations" and
"Underwriting" (other than the 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 Securities and the laws
and documents referred to therein, accurate and complete in all material
respects;
(o) 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 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
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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 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;
(q) Neither the Company nor the Partnership has knowledge of
(i) 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 (ii) 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 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
(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 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.
2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
$24.2125 per Depositary Share, the amount of the Securities set forth opposite
such Underwriter's name in Schedule I hereto.
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3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 10:00 AM, New York City time, on August 31, 2004, 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 and the Company 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 purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
The Company 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 Company and the respective Underwriters will pay
any additional stock transfer taxes involved in further transfers by them.
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. The Company agrees with the several
Underwriters that:
(a) 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
9
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.
(b) 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 of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) 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.
(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 and
counsel for the Underwriters, 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. The Company
will pay the expenses of printing or other production of all documents relating
to the offering.
(e) 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, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay any fee
of the National Association of Securities Dealers, Inc. in connection with its
review of the offering; 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,
10
other than those arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(f) During the period beginning on the date hereof and
continuing to and including the date that is 30 days after the time of delivery
for the Securities, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, any preferred securities of the Company that
are substantially similar to the Securities (other than the issuance of
preferred securities pursuant to private placement transactions in which the
purchasers are not permitted to sell such preferred securities until at least 30
days after the delivery of the Securities), without the prior consent of the
Representatives.
(g) The Company will comply with all applicable securities
and other applicable laws, rules and regulations, including, without limitation,
the Sarbanes Oxley Act of 2002, 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 of 2002.
(h) The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its 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 LLP, 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:
11
(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 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 have been duly and validly authorized and issued
and are fully paid and nonassessable; the Securities have been
duly and validly authorized and, when issued and delivered to
and paid for by the Underwriters pursuant to this Agreement,
will be validly issued, fully paid and nonassessable; the
Securities are duly listed, and admitted and authorized for
trading, on the New York Stock Exchange, subject to official
notice of issuance; the certificates for the Securities are in
valid and sufficient form; the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or
other rights to subscribe for the Securities arising by
operation of law or the Company's articles of incorporation or
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 or such opinion, 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
12
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 "Capital Stock", "Description of Common Stock",
"Description of Preferred Stock", "Description of Depositary
Shares", insofar as they purport to constitute a summary of the
terms of the Securities, and the statements included or
incorporated by reference in the Prospectus under the heading
"Plan of Distribution" and in the Prospectus Supplement under
the headings "Certain Federal Income Tax Considerations" and
"Underwriting" (other than the information furnished in writing
to the Company by or on behalf of any Underwriter through the
Representatives), 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 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 or
contains any untrue statement of a material fact or omitted or
omits 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 or 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
13
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 and the application of
the proceeds thereof 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 Securities being sold by Company 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 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;
14
(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.
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 Representatives 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 shall have furnished to
such counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(d) 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 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;
15
(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).
(e) The Company shall have requested and caused KPMG LLP to
have furnished to the Representatives, 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, with respect to the letter furnished as of the
Closing Date, they have performed a review of the unaudited interim financial
information of the Company for the six-month period ended June 30, 2004, and as
at June 30, 2004 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, with respect to the
letter furnished as of the Closing Date, in accordance with
standards established under Statement on Auditing Standards No.
100, of the unaudited interim financial information for the six-
month period ended June 30, 2004, and as at June 30, 2004,
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
16
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
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
June 30, 2004, (i) only with respect to the letter
furnished as of the Closing Date, 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 June
30, 2004 consolidated balance sheet included or
incorporated by reference in the Registration
Statement and the Prospectus, or (ii) for the period
from July 1, 2004 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
17
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 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 (e) include any
amendment or supplement thereto at the date of the letter.
(f) 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 (e) 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 Registration Statement
18
(exclusive of any amendment thereof) and the Prospectus (exclusive of any
amendment or supplement thereto).
(g) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
(h) 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.
(i) The Securities shall have been listed and admitted or
authorized for trading on the New York Stock Exchange, subject to official
notice of issuance, and satisfactory evidence of such actions shall have been
provided 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 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. (a) The Company covenants and agrees with each
of the several Underwriters that, whether or not the transactions contemplated
in this Agreement are consummated or this Agreement is terminated, (i) the
Company 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
Company, any fees and disbursements of independent public accountants for the
Company incurred in connection with the registration of the Securities under
the Act, all underwriting discounts and commissions and transfer taxes, if any,
and any premiums and other costs of policies of insurance obtained by the
Company against liabilities arising out of the public offering of the
Securities. It is understood, however, that, except as provided in this Section
and Section 8 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Securities by them, and any advertising expenses connected with any
offers they may make.
19
(b) If the sale of the Securities provided for herein is
not consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally through the
Representatives on demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter 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 or on behalf of any Underwriter 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 indemnified person 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 indemnified
person 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 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.
20
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, the directors, officers, employees and
agents of the Company, and each person who controls the Company 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 to each Underwriter, 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
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the following statements, as set forth under the heading "Underwriting" of
the Prospectus, constitute the only information furnished by or on behalf of the
several Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus: (i) the list of Underwriters and their respective participation in
the sale of the Securities, and (ii) the sentences related to concessions and
reallowances appearing in the third paragraph of page S-28 of the Prospectus.
(c) 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) or (b) 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) or (b) 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
21
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.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company 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 the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other, 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. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company 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 the Company on the one hand and
of the Underwriters on the other, in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
it and 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 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 on the one hand or the
Underwriters on the other, 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 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 (d), 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 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 the Company within the meaning of
either the Act or the Exchange Act, and each director, officer, employee and
22
agent 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
(d).
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 or the Company. 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 and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company 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 national or international 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 and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
23
regardless of any investigation made by or on behalf of any Underwriter 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., 388 Greenwich
Street, New York, New York, 10013, Attention: General Counsel (fax no.:
(212) 816-7912), Merrill Lynch, Pierce, Fenner & Smith Incorporated, 4
World Financial Center, New York, New York 10080, Attention: Scott
Eisen (fax no.: (212) 449-9143), and Wachovia Capital Markets, LLC, 301
South College St, Charlotte, NC 28288, Attention: Investment Grade
Syndicate (fax no.: (704) 383-9165); 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.
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.
"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.
24
"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.
"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.
25
"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.
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 and the several Underwriters.
Very truly yours,
Regency Centers Corporation
By:_____________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
Citigroup Global Markets Inc.
By: ___________________________________
Name:
Title:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: ___________________________________
Name:
Title:
Wachovia Capital Markets, LLC
By: ___________________________________
Name:
Title:
For themselves and the other several
Underwriters named in Schedule I to
the foregoing Agreement.
SCHEDULE I
----------
Underwriters Number of Depositary
------------ Shares to be Purchased
----------------------
Citigroup Global Markets Inc. ............................................ 1,416,678
Merrill Lynch, Pierce, Fenner & Smith Incorporated........................
1,408,333
Wachovia Capital Markets, LLC............................................. 1,408,333
Credit Suisse First Boston LLC............................................ 50,000
Deutsche Bank Securities Inc. ............................................ 50,000
Goldman, Sachs & Co. ..................................................... 50,000
J.P. Morgan Securities Inc. .............................................. 50,000
Raymond James & Associates, Inc. ......................................... 50,000
A.G. Edwards & Sons, Inc. ................................................ 33,333
Bear, Stearns & Co., Inc. ................................................ 33,333
Charles Schwab & Co., Inc. ............................................... 33,333
H&R Block Financial Advisors, Inc. ....................................... 33,333
Oppenheimer & Co., Inc. .................................................. 33,333
Piper Jaffray & Co. ...................................................... 33,333
RBC Dain Rauscher Inc. ................................................... 33,333
Stifel, Nicolaus & Company, Incorporated.................................. 33,333
TD Waterhouse Investor Services, Inc. .................................... 33,333
Wells Fargo Securities, LLC............................................... 33,333
Advest, Inc. ............................................................. 16,666
Banc of America Securities LLC............................................ 16,666
D. A. Davidson & Co. ..................................................... 16,666
Ferris, Baker Watts Incorporated.......................................... 16,666
J.J.B. Hilliard, W.L. Lyons, Inc. ........................................ 16,666
Janney Montgomery Scott LLC............................................... 16,666
Legg Mason Wood Walker, Incorporated...................................... 16,666
Mesirow Financial, Inc. .................................................. 16,666
Quick & Reilly, Inc. ..................................................... 16,666
Robert W. Baird & Co. Incorporated........................................ 16,666
Ryan Beck & Co., Inc. .................................................... 16,666
-----------
Total............................................................ 5,000,000
August 4, 2004
Exhibit A
REGENCY CENTERS CORPORATION
Subsidiaries and Equity Ownership Thereof
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
- ------------------------------------------------------------------------------------------------------------------------------------
Regency Centers Texas, LLC Florida Regency Centers Corporation Member 100%
Regency Centers, L.P. Delaware Regency Centers Corporation General Partner 1.0%
Regency Centers Texas, LLC Limited Partner 96.3%
Outside Investors Limited Partners 2.7%
Columbia Regency Retail Partners, LLC Delaware Regency Centers, L.P. Member 20%
Columbia Perfco Partners, L.P. Member 80%
Columbia Cameron Village, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Retail Addison, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Retail Addison Town Center, Delaware Columbia Retail Addison, LLC General Partner 1%
Limited Partnership Columbia Regency Retail Partners, LLC 99%
Columbia Retail Baker Hill, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Retail Deer Grove, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Retail Deer Grove Center, LLC Delaware Columbia Retail Deer Grove, LLC Member 100%
Columbia Retail Dulles, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
A-1
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
- ------------------------------------------------------------------------------------------------------------------------------------
Columbia Retail Fox Lake, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Retail Fox Lake Crossing, LLC Delaware Columbia Retail Fox Lake, LLC General Partner 1%
Limited Partner 99%
Columbia Retail Geneva Crossing, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Retail Shorewood Crossing, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Retail Special Member (GLP), LLC Delaware Columbia Perfco, L.P. Member 80%
Regency Centers, L.P. 20%
Columbia Retail Stearns Crossing, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Retail Texas 2, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Retail MacArthur Phase II, LP Delaware Columbia Retail Texas 2, LLC General Partner 1%
Columbia Regency Retail Partners, LLC Limited Partner 99%
Columbia Retail Texas 3, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Retail Sweetwater Plaza, LP Delaware Columbia Retail Texas 3, LLC General Partner 1%
Columbia Regency Retail Partners, LLC Limited Partner 99%
Columbia Retail Washington 1, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Cascade Plaza, LLC Delaware Columbia Retail Washington 1, LLC Member 100%
Macquarie CountryWide-Regency, LLC Delaware Regency Centers, L.P. Member 25%
Macquarie CountryWide (US) Corporation Member 75%
A-2
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
- ------------------------------------------------------------------------------------------------------------------------------------
MCW-RC AL-Southgate, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC CA-Campus, LLC (fka MCW-RC California, Delaware Macquarie CountryWide-Regency, LLC Member 100%
LLC)
MCW-RC CA-Garden Village, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC CO-Cheyenne, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Anastasia, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Highlands, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-King's, LLC (fka MCW-RC
Florida, LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Lynn Haven, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Ocala, LLC (fka MCW-RC Delaware Macquarie CountryWide-Regency, LLC Member 100%
Florida 2, LLC)
MCW-RC FL-Palm Harbour, 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 GA-Bethesda Walk, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Braelinn Village, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
A-3
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
- ------------------------------------------------------------------------------------------------------------------------------------
MCW-RC GA-Brookwood Village, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Buckhead Crossing, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Cobb Center, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Coweta Crossing, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Holcomb 400, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Howell Mill Village, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Killian Hill, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Lindbergh Crossing, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Orchard, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Northlake Promenade, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Peachtree Parkway Plaza, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Powers Ferry Kroger, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Publix Plaza, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Rose Creek, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Roswell Crossing, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
A-4
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
- ------------------------------------------------------------------------------------------------------------------------------------
MCW-RC GA-Thomas Crossroads, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Trowbridge Crossing, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Woodstock Crossing, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC KY-Franklin, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC KY-Silverlake, LLC (fka MCW-RC Delaware Macquarie CountryWide-Regency, LLC Member 100%
Kentucky, LLC)
MCW-RC NC-Bent Tree, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC NC-Greystone Village, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC OR-Cherry Park, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC OR-Hillsboro, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC SC-Fairview Market, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC SC-Merchant's, LLC (fka MCW-RC Delaware Macquarie CountryWide-Regency, LLC Member 100%
South Carolina, LLC)
MCW-RC SC-North Pointe, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC SC-Poplar Springs, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC SC-Rosewood, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC TN-Marketplace, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
A-5
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
- ------------------------------------------------------------------------------------------------------------------------------------
MCW-RC TN-Papermill Plaza, 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 (fka MCW-RC Delaware MCW-RC Texas GP, LLC General Partner .01%
Texas, L.P.) Macquarie CountryWide-Regency, LLC Limited Partner 9.99%
MCW-RC VA-Brookville, LLC (fka MCW-RC Delaware Macquarie CountryWide-Regency, LLC Member 100%
Virginia,LLC)
MCW-RC VA-Somerset Crossing, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC WA-James, LLC (fka MCW-RC Delaware Macquarie CountryWide-Regency, LLC Member 100%
Washington, LLC)
MCW/MDP-Regency, LLC Delaware Regency Centers, L.P. Member 25%
MCW/MDP, LLC Member 75%
MCD-RC CA-Amerige, LLC Delaware MCW/MDP-Regency, LLC Member 100%
MCD-RC El Cerrito Holdings, LLC Delaware MCW/MDP-Regency, LLC Member 100%
MCD-RC CA-El Cerrito, LLC Delaware MCD-RC El Cerrito Holdings, LLC Member 100%
MCD-RC OH-Milford, LLC Delaware MCW/MDP-Regency, LLC Member 100%
Bear Creek Village Center, LLC Delaware Regency Centers, L.P. Member 50%
Morris Development and
Real Estate Services, Inc. Member 50%
A-6
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
- ------------------------------------------------------------------------------------------------------------------------------------
Belleview Square, LLC Delaware Regency Centers, L.P. Member 100%
Clayton Valley Shopping Center, LLC Delaware Regency Centers, L.P. Member 100%
NSHE Winnebago, LLC Arizona Regency Centers, L.P. Member 100%
Northlake Village Shopping Center, LLC Florida Regency Centers, L.P. Member 100%
OTR/Regency Colorado Realty Holdings, L.P. Ohio Regency Centers, L.P. General Partner 30%
OTR (Nominee for State
Teachers Retirement Board Limited Partner 70%
of Ohio)
OTR/Regency Texas Realty Holdings, L.P. Ohio Regency Centers, L.P. General Partner 30%
OTR (Nominee for State
Teachers Retirement Board Limited Partner 70%
of Ohio)
Queensboro Associates, L.P. Georgia Regency Centers, L.P. General Partner 50%
Real Sub, LLC Limited Partner 50%
Regency Centers Advisors, LLC Florida Regency Centers, L.P. Member 100%
RC CA Santa Barbara, LLC Delaware Regency Centers, L.P. Member 100%
RC Georgia Holdings, LLC Georgia Regency Centers, L.P. Member 100%
Regency Braemar, LLC Georgia Regency Centers, L.P. Member 100%
Regency Centers Georgia, L.P. Georgia RC Georgia Holdings, LLC General Partner 1%
Regency Centers, L.P. Limited Partner 99%
Regency Opitz, LLC Delaware Regency Centers, L.P. Member 100%
A-7
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
- ------------------------------------------------------------------------------------------------------------------------------------
Regency Remediation, LLC Florida Regency Centers, L.P. Member 100%
Regency Tall Oaks Village Center, LLC Delaware Regency Centers, L.P. Member 100%
Regency Woodlands/Kuykendahl Texas Regency Centers, L.P. General Partner 50%
HEB Grocery Company, LP Limited Partner 50%
R&KS Dell Range, LLC Wyoming Regency Centers, L.P. Member 100%
RRG-RMC-Tracy, LLC Delaware Regency Centers, L.P. Member 50%
RMC/Tracy, LLC Member 50%
Silver Spring Commons, LLC Delaware Regency Center, L.P. Member 75%
TCH Realty Development Co., LLC Member 25%
T&M Shiloh Development Company Texas Regency Centers, L.P. General Partner 100%
T&R New Albany Development Company, LLC Ohio Regency Centers, L.P. Member 50%
Topvalco Member 50%
RRG Holdings, LLC Florida Regency Centers, L.P. Member 100%
Regency Realty Group, Inc. Florida Regency Centers, L.P. Preferred Stock 100%
Common Stock 7%
RRG Holdings, LLC Common Stock 93%
8th and 20th Chelsea, LLC Delaware Regency Realty Group, Inc. Member 100%
Alameda Bridgeside Shopping Center, LLC Delaware Regency Realty Group, Inc. Member 100%
A-8
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
- ------------------------------------------------------------------------------------------------------------------------------------
Bammel Center, LLC Delaware Regency Realty Group, Inc. Member 100%
Bordeaux Development, LLC Florida Regency Realty Group, Inc. Member 100%
Broadman, LLC Delaware Regency Realty Group, Inc. Member 100%
Centerplace of Greeley, LLC Delaware Regency Realty Group, Inc. Member 100%
The Center at Slatten Ranch, LLC Delaware Regency Realty Group, Inc. Member 100%
Cherry Street Center, LLC Delaware Regency Realty Group, Inc. Member 100%
Chestnut Powder, LLC Georgia Regency Realty Group, Inc. Member 100%
Clinton Plaza, LLC Delaware Regency Realty Group, Inc. Member 100%
Dixon, LLC Florida Regency Realty Group, Inc. Member 100%
East Towne Center, LLC Delaware Regency Realty Group, Inc. Member 50%
Lake McLeod, LLC Member 50%
Edmunson Orange Corp. Tennessee Regency Realty Group, Inc. Common Stock 100%
Fortuna Regency, LLC Delaware Regency Realty Group, Inc. Member 100%
GME/RRG I, LLC Delaware Regency Realty Group, Inc Member 50%
G.M.E. Anaheim, LLC Member 50%
Hasley Canyon Village, LLC Delaware Regency Realty Group, Inc. Member 50%
Community Company, LLC Member 50%
A-9
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
- ------------------------------------------------------------------------------------------------------------------------------------
Hermitage Development II, LLC Florida Regency Realty Group, Inc. Member 100%
Hermosa Venture, LLC Delaware Regency Realty Group, Inc. Member 70%
Gus A. Barks, Jr., Peter G.
Barks and George G. Barks Member 30%
Hoadly Regency, LLC Delaware Regency Realty Group, Inc. Member 80%
John H. Donegan Member 20%
Hollymead Town Center, LLC Delaware Regency Realty Group, Inc. Member 50%
DRG-Charlottesville Developers, LLC Member 50%
Jog Road, LLC Florida Regency Realty Group, Inc. Member 50%
Bentz Capital Group, LLC Member 50%
Southland Centers II, LLC Florida Jog Road, LLC Member 100%
K&G/Regency II, LLC Delaware Regency Realty Group, Inc. Member 50%
K&G Equities VII, LLC 50%
Luther Properties, Inc. Tennessee Regency Realty Group, Inc. Common Stock 100%
Marietta Outparcel, Inc. Georgia Regency Realty Group, Inc. Common Stock 100%
The Marketplace at Briargate, LLC Delaware Regency Realty Group, Inc. Member 100%
Merrimack Shopping Center, LLC Delaware Regency Realty Group, Inc. Member 100%
Middle Tennessee Development, LLC Delaware Regency Realty Group, Inc. Member 100%
Mountain Meadow, LLC Delaware Regency Realty Group, Inc. Member 100%
A-10
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
- ------------------------------------------------------------------------------------------------------------------------------------
Murieta Gardens Shopping Center, LLC Delaware Regency Realty Group, Inc. Member 100%
New Windsor Marketplace, LLC Delaware Regency Realty Group, Inc. Member 100%
R2 Media, LLC Florida Regency Realty Group, Inc. Member 100%
RRG Net, LLC Florida Regency Realty Group, Inc. Member 100%
Regency Blue Ash, LLC Delaware Regency Realty Group, Inc. Member 100%
Regency Braemar, LLC Delaware Regency Realty Group, Inc. Member 100%
Regency Cahan-Clovis, LLC Delaware Regency Realty Group, Inc. Member 50%
Cahan Properties, Inc. Member 50%
Regency/DS Ballwin, LLC Missouri Regency Realty Group, Inc. Member 50%
DS Ballwin Partners, Inc. Member 50%
Regency I-45/Spring Cypress Retail, L.P. Delaware Regency Realty Group, Inc. General Partner 90%
HEB Grocery Company, L.P. Limited Partner 10%
Regency Magi, LLC Delaware Regency Realty Group, Inc. Member 50%
Magi, LLC Member 50%
Regency Marinita-LaQuinta, LLC Delaware Regency Realty Group, Inc. Member 50%
Marinita Development Co. Member 50%
Regency Petaluma, LLC Delaware Regency Realty Group, Inc. Member 100%
Regency Realty Colorado, Inc. Florida Regency Realty Group, Inc Common Stock 80%
Snowden Leftwich Common Stock 20%
(see Note 1)
A-11
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
- ------------------------------------------------------------------------------------------------------------------------------------
Regency Realty Group-NE, Inc. Florida Regency Realty Group, Inc. Common Stock 100%
Regency Somerset, LLC Delaware Regency Realty Group, Inc. Member 80%
JDC Somerset, LLC Member 20%
Rhett Remount, Inc. South Carolina Regency Realty Group, Inc. Common Stock 100%
Signal Hill Two, LLC Delaware Regency Realty Group, Inc. Member 80%
John H. Donegan Member 20%
Signature Plaza, LLC Delaware Regency Realty Group, Inc. Member 100%
Slausen Central, LLC Delaware Regency Realty Group, Inc. Member 100%
Thompson Nolensville, LLC Florida Regency Realty Group, Inc. Member 100%
Tinwood, LLC Florida Regency Realty Group, Inc. Member 50%
Member 50%
Tulip Grove, LLC Florida Regency Realty Group, Inc. Member 100%
Valleydale, LLC Delaware Regency Realty Group, Inc. Member 100%
Vista Village, LLC Delaware Regency Realty Group, Inc. Member 50%
Civic Partners Vista Village I, LLC Member 50%
West End Properties, LLC Florida Regency Realty Group, Inc. Member 100%
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.
A-12
REGENCY CENTERS CORPORATION,
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS DEPOSITARY,
AND
THE HOLDERS FROM TIME TO TIME OF
THE RECEIPTS EVIDENCING THE DEPOSITARY SHARES
DESCRIBED HEREIN.
Deposit Agreement
Dated as of August 31, 2004
TABLE OF CONTENTS
Page
PARTIES ......................................................................1
RECITALS......................................................................1
ARTICLE I
DEFINITIONS
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF STOCK; EXECUTION AND DELIVERY,TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.01. Book - Entry Form; Form and Transfer of Receipts...............2
Section 2.02. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof................................................4
Section 2.03. Redemption of Stock............................................5
Section 2.04. Registration of Transfer of Receipts...........................6
Section 2.05. Split-Ups and Combinations of Receipts; Surrender of Receipts..6
Section 2.06. Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts.....................................7
Section 2.07. Lost Receipts, Etc.............................................7
Section 2.08. Cancellation and Destruction of Surrendered Receipts...........7
Section 2.09. Stock Purchase Plans...........................................7
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.01. Filing Proofs, Certificates and Other Information..............8
Section 3.02. Payment of Taxes or Other Governmental Charges.................8
Section 3.03. Warranty as to Stock...........................................8
Section 3.04. Warranty as to Receipts........................................8
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.01. Cash Distributions.............................................8
Section 4.02. Distributions Other Than Cash..................................9
Section 4.03. Subscription Rights, Preferences or Privileges.................9
Section 4.04. Notice of Dividends, Etc.; Fixing of Record Date for
Holders of Receipts.........................................10
Section 4.05. Voting Rights.................................................10
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Page
Section 4.06. Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, Etc.............. 11
Section 4.07. Inspection of Reports.........................................12
Section 4.08. List of Receipt Holders.......................................12
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY
Section 5.01. Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar.......................................12
Section 5.02. Prevention or Delay by the Depositary, the Depositary's
Agents, the Registrar or the Company........................13
Section 5.03. Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company...................................13
Section 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary........................................13
Section 5.05. Corporate Notices and Reports.................................14
Section 5.06. Indemnification by the Company................................14
Section 5.07. Charges and Expenses..........................................15
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.01. Amendment.....................................................15
Section 6.02. Termination...................................................15
ARTICLE VII
MISCELLANEOUS
Section 7.01. Counterparts..................................................16
Section 7.02. Exclusive Benefit of Parties..................................16
Section 7.03. Invalidity of Provisions......................................16
Section 7.04. Notices.......................................................17
Section 7.05. Depositary's Agents...........................................17
Section 7.06. Holders of Receipts are Parties...............................17
Section 7.07. Governing Law.................................................17
Section 7.08. Inspection of Deposit Agreement...............................18
Section 7.09. Headings......................................................18
TESTIMONIUM..................................................................19
SIGNATURES...................................................................19
EXHIBIT A: Depositary Receipt.................................................
-ii-
DEPOSIT AGREEMENT
dated as of August 31, 2004
among
REGENCY CENTERS CORPORATION,
a Florida corporation,
WACHOVIA BANK, NATIONAL ASSOCIATION,
a national banking association, as Depositary,
AND THE HOLDERS FROM TIME TO TIME OF
THE RECEIPTS EVIDENCING THE DEPOSITARY SHARES
DESCRIBED HEREIN
WHEREAS, it is desired to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of shares of 7.25% Series 4 Preferred
Stock, liquidation preference $250.00 per share, of the Company with the
Depositary for the purposes set forth in this Deposit Agreement and for the
issuance hereunder of Receipts by the Depositary evidencing Depositary Shares in
respect of the Stock so deposited (capitalized terms used herein shall have the
meaning assigned to them in Article I below).
NOW, THEREFORE, in consideration of the promises contained
herein and such other good and valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless
otherwise indicated, apply to the respective terms used in this Deposit
Agreement and the Receipts:
"Amendment" shall mean the articles of amendment to the
Articles of Incorporation, as amended, of the Company filed with the Secretary
of State of the State of Florida establishing the Stock as a series of preferred
stock of the Company.
"Company" shall mean Regency Centers Corporation, a Florida
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as
amended or supplemented from time to time in accordance with the terms hereof.
"Depositary" shall mean Wachovia Bank, National Association, a
national banking association, and any successor Depositary hereunder.
"Depositary Shares" shall mean the Depositary Shares, each
representing a one-tenth (1/10th) interest in one share of Stock, which shall be
evidenced by Receipts.
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"Depositary's Agent" shall mean an agent appointed by the
Depositary pursuant to Section 7.05 of this Deposit Agreement.
"Depositary's Office" shall mean the principal office of the
Depositary at which at any particular time its depositary business shall be
administered.
"DTC" shall have the meaning assigned to it in Section 2.01 of
this Deposit Agreement.
"DTC Receipt" shall have the meaning assigned to it in Section
2.01 of this Deposit Agreement.
"NYSE" shall have the meaning assigned to it in Section 2.06
of this Deposit Agreement.
"Receipt" shall mean one of the depositary receipts, whether
in definitive or temporary form, issued hereunder by the Depositary, each
representing any number of whole Depositary Shares. If the context so requires,
the term "Receipt" shall be deemed to include the DTC Receipt (as defined in
Section 2.01 hereof).
"record holder" with respect to a Receipt shall mean the
individual, entity or person in whose name a Receipt is registered on the books
of the Depositary or any register of any Registrar maintained for such purpose
at a given time.
"Redemption Date" shall have the meaning assigned to it in
Section 2.03 of this Deposit Agreement.
"Registrar" shall mean any bank or trust company that shall be
appointed by the Depositary to register ownership and transfers of Receipts as
herein provided and which may include the Depositary.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stock" shall mean the Company's 7.25% Series 4 Cumulative
Redeemable Preferred Stock, $0.01 par value and a liquidation preference of
$250.00 per share.
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF STOCK; EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.01. Book - Entry Form; Form and Transfer of
Receipts. All the Depositary Shares shall initially be represented by one or
more global receipts (collectively, the "DTC Receipt") registered in the name of
The Depository Trust Company ("DTC") or its nominee. The Depositary, or such
other entity as is agreed to by DTC, may hold the DTC Receipt as custodian for
DTC. The DTC Receipt shall bear such legend or legends as may be required by DTC
in order for it to accept the Depositary Shares for its book-entry settlement
system. So long as the Receipts are eligible for book-entry settlement with DTC,
no person acquiring Depositary Shares traded on any securities exchange with
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book-entry settlement through DTC shall receive or be entitled to receive
physical delivery of Receipts evidencing such Depositary Shares. Ownership of
beneficial interests in the DTC Receipt shall be shown on, and the transfer of
such ownership shall be effected through, records maintained by (i) DTC or its
nominee for such DTC Receipt, or (ii) institutions that have accounts with DTC.
If DTC subsequently ceases to make its book-entry settlement
system available for the Depositary Shares, the Company may instruct the
Depositary as to other arrangements for book-entry settlement. In the event that
the Depositary Shares are not eligible for, or it is no longer necessary to have
the Depositary Shares available in book-entry form, the Company shall provide
written instructions to DTC to deliver to the Depositary for cancellation, and
the Company shall instruct the Depositary to cancel, the DTC Receipt surrendered
to it and deliver to the beneficial owners of the Depositary Shares previously
evidenced by the DTC Receipt definitive Receipts in physical form evidencing
their beneficial interest in Depositary Shares. The beneficial owners of
Depositary Shares shall not be entitled to receive Receipts in physical,
certificated form except as herein provided.
Definitive Receipts, if applicable, shall be engraved or
printed or lithographed on steel-engraved borders and shall be substantially in
the form annexed hereto as Exhibit A, with appropriate insertions, modifications
and omissions, as hereinafter provided. Pending the preparation of definitive
Receipts, if applicable, the Depositary, upon the written order of the Company
delivered in compliance with Section 2.02, shall execute and deliver temporary
Receipts which shall be printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for definitive
Receipts upon surrender of the temporary Receipts at the Depositary's Office,
without charge to the holders. Upon surrender for cancellation of any one or
more temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as represented by the surrendered temporary Receipt or Receipts registered in
the name (and only the name) of the holder of the temporary Receipt. Such
exchange shall be made at the Company's expense and without any charge therefor
to the holder. Until so exchanged, the temporary Receipts shall in all respects
be entitled to the same benefits under this Deposit Agreement and with respect
to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized officer of the Depositary; provided that such
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such Receipts are countersigned by
manual signature of a duly authorized officer of the Registrar. No Receipt shall
be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been (i) executed manually by a
duly authorized officer of the Depositary or (ii) executed by manual or
facsimile signature of a duly authorized officer of the Depositary and
countersigned manually by a duly authorized officer of a Registrar for the
Receipts (other than the Depositary, if any). The Depositary shall record on its
books each Receipt so signed and delivered as hereinafter provided. The manual
or facsimile signatures on the Receipts of individuals who were at any the time
of execution proper officers of the Depositary or the Registrar, as the case may
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be, shall constitute adequate signatures hereunder, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
delivery of such Receipts or did not hold such offices on the date of delivery
of such Receipts.
Receipts shall be in denominations of any number of whole
Depositary Shares.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the provisions
of this Deposit Agreement as may be required by the Depositary and approved by
the Company or required to comply with any applicable law or regulation or with
the rules and regulations of any securities exchange upon which shares of Stock,
the Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Subject to any limitations set forth in a Receipt or in this
Deposit Agreement, title to Depositary Shares evidenced by a Receipt which is
properly endorsed, or accompanied by a properly executed instrument of transfer,
shall be transferable by delivery of such Receipt with the same effect as if
such Receipt were a negotiable instrument; provided, however, that until
transfer of a Receipt shall be registered on the books of the Registrar, on
behalf of the Depositary, as provided in Section 2.04, the Depositary may,
notwithstanding any notice to the contrary, treat the record holder as the
absolute owner thereof for the purpose of determining the person entitled to
distributions of dividends or other distributions with respect to the Stock or
to any notice provided for in this Deposit Agreement and for all other purposes.
The Depositary shall not lend any shares of Stock deposited
hereunder.
Section 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this Deposit
Agreement, the Company may from time to time deposit shares of Stock with the
Depositary under this Deposit Agreement by delivery to the Depositary of a
certificate or certificates representing the shares of Stock to be deposited.
Such certificate or certificates representing the shares of Stock shall be (i)
properly endorsed or, if required by the Depositary, accompanied by a duly
executed instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and (ii)
accompanied by a written order of the Company directing the Depositary to
execute and deliver to the person or persons named in such order a Receipt or
Receipts evidencing in the aggregate the number of Depositary Shares
representing interests in such deposited shares of Stock.
All shares of Stock deposited by the Company with the
Depositary shall be held by the Depositary at the Depositary's Office or at such
other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or
certificates representing shares of Stock deposited with the Depositary by the
Company in accordance with the provisions of this Section 2.02, together with
the other documents required as above specified, and upon recordation of the
shares of Stock so deposited on the books of the Company in the name of the
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Depositary, the Depositary shall execute and deliver, to the person or persons
named in the written order delivered to the Depositary, a Receipt or Receipts,
evidencing in the aggregate the number of Depositary Shares representing
interests in the shares of Stock so deposited. Such Receipt or Receipts shall be
registered by the Depositary or the Registrar in such name or names as may be
requested by the person or persons named in the written order. The Depositary
shall execute and deliver such Receipts at the Depositary's Office or such other
offices, if any, as such person may designate. Delivery at other offices shall
be at the risk and expense of the person requesting such delivery.
The DTC Receipt shall provide that it shall evidence the
aggregate amount of Depositary Shares from time to time indicated in the records
of the Depositary and that the aggregate amount of Depositary Shares evidenced
thereby may from time to time be increased or decreased by making adjustments on
such records of the Depositary.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions in the form of shares of Stock, if any, there shall be deposited
with the Depositary hereunder not more than 500,000 shares of Stock.
Section 2.03. Redemption of Stock. Whenever the Company shall
elect to redeem shares of Stock in accordance with the provisions of the
Amendment, it shall (unless otherwise agreed in writing with the Depositary)
mail notice to the Depositary of such redemption, by first class mail, postage
prepaid, not less than 40 nor more than 70 days prior to the date fixed for the
redemption of the shares of Stock in accordance with the provisions of the
Amendment. On the date of such redemption, provided that the Company shall then
have paid in full to the Depositary the redemption price required pursuant to
the Amendment and sufficient to redeem the shares of Stock to be redeemed, the
Depositary shall redeem the Depositary Shares representing interests in such
shares of Stock. The Depositary shall mail notice of such redemption, and the
simultaneous redemption of the number of Depositary Shares representing
interests in the shares of Stock to be redeemed, by first-class mail, postage
prepaid, not less than 30 and not more than 60 days prior to the date fixed for
redemption of such shares of Stock and Depositary Shares (the "Redemption
Date"), to the record holders of the Receipts evidencing the Depositary Shares
to be so redeemed on the record date fixed pursuant to Section 4.04 hereof, at
the addresses of such holders as they appear on the records of the Depositary;
provided, however, that neither failure to mail any such notice to one or more
such holders nor any defect in any notice or in the mailing thereof to one or
more such holders shall affect the validity of the proceedings for redemption of
any Depositary Shares as to other holders. Each such notice of redemption shall
state: (i) the Redemption Date; (ii) the number of Depositary Shares to be
redeemed and, if less than all the Depositary Shares held by any such holder are
to be redeemed, the number of such Depositary Shares held by such holder to be
so redeemed and the method by which the Depositary Shares will be chosen for
redemption; (iii) the redemption price (including any authorized, declared, but
unpaid dividends on the Redemption Date); (iv) the place or places where
Receipts evidencing Depositary Shares are to be surrendered for payment of the
redemption price; (v) that dividends in respect of the shares of Stock to be
redeemed, which are represented by the Depositary Shares to be redeemed, will
cease to accrue at the close of business on such Redemption Date; and (vi) if
the date from and after which the shares of Stock and Depositary Shares shall no
longer be deemed to be outstanding is a date other than the Redemption Date,
such other date. In case less than all the outstanding Depositary Shares are to
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be redeemed, the Depositary Shares to be so redeemed shall be selected by lot or
pro rata as may be determined by the Company.
Notice having been mailed by the Depositary as aforesaid, from
and after (a) the Redemption Date (unless the Company shall have failed to
redeem the shares of Stock to be redeemed by it as set forth in the Company's
notice provided for in the preceding paragraph), or (b) such earlier date (if
applicable) upon which the Company deposits the redemption price (including any
authorized, declared, but unpaid dividends on the Redemption Date) with the
paying agent for the holders of the shares of Stock (regardless of whether such
shares are actually surrendered for cancellation), all dividends in respect of
the shares of Stock so called for redemption shall cease to accrue, the
Depositary Shares being redeemed from such proceeds shall be deemed no longer to
be outstanding, all rights of the holders of Receipts evidencing such Depositary
Shares (except the right to receive the redemption price) shall, to the extent
of such Depositary Shares, cease and terminate and, upon surrender in accordance
with such notice of the Receipts evidencing any such Depositary Shares called
for redemption (properly endorsed or assigned for transfer, if the Depositary
shall so require), such Depositary Shares shall be redeemed by the Depositary at
a redemption price per Depositary Share equal to 1/10th of the redemption price
per share paid in respect of the shares of Stock plus authorized, declared, but
unpaid dividends on the Redemption Date.
If less than all the Depositary Shares evidenced by a Receipt
are called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with the payment of the
redemption price, a new Receipt evidencing such number of Depositary Shares as
were evidenced by such prior Receipt and not called for redemption; provided,
however, that such replacement Receipt shall be issued only in denominations of
whole Depositary Shares and cash will be payable in respect of fractional
interests.
Section 2.04. Registration of Transfer of Receipts. Subject to
the terms and conditions of this Deposit Agreement, the Registrar, on behalf of
the Depositary, shall register on its books transfers of Receipts from time to
time upon notice to the Registrar by the Depositary of the surrender of a
Receipt for transfer by the holder in person or by duly authorized attorney,
which Receipt in each case must be properly endorsed or accompanied by a
properly executed instrument of transfer. Upon surrender of a properly endorsed
Receipt or Receipt accompanied by an instrument of transfer, the Depositary
shall execute a new Receipt or Receipts evidencing the same aggregate number of
Depositary Shares as those evidenced by the Receipt or Receipts surrendered and
deliver such new Receipt or Receipts to or upon the order of the transferee
named in the endorsement or instrument of transfer.
Section 2.05. Split-Ups and Combinations of Receipts;
Surrender of Receipts. Upon surrender of a Receipt or Receipts at the
Depositary's Office or at such other offices as it may designate for the purpose
of effecting a split-up or combination of such Receipt or Receipts, the
Depositary shall execute and deliver a new Receipt or Receipts to the holder
thereof or to such holder's order in the denominations requested, evidencing the
aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered. The Depositary shall give prompt notice of such action and the
certificate numbers to the Registrar for the purpose of recording such split-up
or consolidation.
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Section 2.06. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require (i) payment to it of a sum sufficient for the payment (or,
in the event that the Depositary or the Company shall have made such payment,
the reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, (ii) the production of evidence satisfactory
to it as to the identity and genuineness of any signature and/or (iii)
compliance with the rules and regulations of any governmental body, any stock
exchange or any applicable self regulatory body, including without limitation,
the New York Stock Exchange (the "NYSE") or such other regulations, if any, as
the Depositary or the Company may establish consistent with the provisions of
this Deposit Agreement.
The delivery of Receipts against the shares of Stock deposited
with the Depositary may be suspended, the registration of transfer of Receipts
may be refused and the registration of transfer, surrender or exchange of
outstanding Receipts may be suspended (i) during any period when the register of
stockholders of the Company is closed or (ii) if any such action is deemed
necessary by the Depositary, any of the Depositary's Agents or the Company at
any time or from time to time because of any requirement of law or of any
government, governmental body or commission, stock exchange or the NYSE or under
any provision of this Deposit Agreement.
Section 2.07. Lost Receipts, Etc. If any mutilated Receipt is
surrendered to the Depositary, the Depositary shall execute and deliver in
exchange therefor a new Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt. In case any Receipt shall be destroyed,
lost or stolen, then, in the absence of notice to the Depositary that such
Receipt has been acquired by a bona fide purchaser, the Depositary shall execute
and deliver a Receipt to the holder thereof of like form and tenor in exchange
and substitution for such destroyed, lost or stolen Receipt, upon (i) the filing
by the holder thereof with the Depositary of evidence satisfactory to the
Depositary and the Company of such destruction or loss or theft of such Receipt,
of the authenticity thereof and of such holder's ownership thereof and (ii) the
holder's furnishing the Depositary with indemnification satisfactory to such
Depositary and the Company.
Section 2.08. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's Agent
shall be canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
Any Receipt evidenced in book-entry form shall be deemed canceled in proportion
to the amount of Depositary Shares evidenced by the DTC Receipt to be reduced.
Section 2.09. Stock Purchase Plans. The Depositary shall take
such action as shall be necessary or appropriate to permit the record holders of
Receipts to participate in any dividend reinvestment or other stock purchase
plan sponsored by the Company that permits the participation by such holders on
such terms and conditions as the Company may determine.
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ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.01. Filing Proofs, Certificates and Other
Information. Any holder of a Receipt may be required from time to time to file
such proof of residence, or other matters or other information, to obtain such
guaranties of signature, to execute such certificates and to make such customary
representations and warranties consistent with the terms of the Stock as the
Depositary or the Company may deem necessary or proper. The Depositary or the
Company may withhold the delivery, or delay the registration of transfer,
redemption or exchange, of any Receipt or the distribution of any dividend or
other distribution or the sale of any rights or of the proceeds thereof until
such proof or other information is filed or such certificates are executed or
such representations and warranties are made.
Section 3.02. Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses as provided in Section 5.07, or provide evidence
satisfactory to the Depositary that such charges and expenses have been paid.
Registration of transfer of any Receipt and delivery of all money or other
property, if any, represented by the Depositary Shares evidenced by such Receipt
may be refused until any such payment due is made, and any dividends, interest
payments or other distributions may be withheld or all or any part of the shares
of Stock or other property represented by the Depositary Shares evidenced by
such Receipt and not theretofore sold may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder prior to
such sale), and such dividends, interest payments or other distributions or the
proceeds of any such sale may be applied to any payment of such charges or
expenses, the holder of such Receipt remaining liable for any deficiency.
Section 3.03. Warranty as to Stock. The Company hereby
represents and warrants to the Depositary that the Stock, when issued, will be
validly issued, fully paid and nonassessable. Such representation and warranty
shall survive the deposit of shares of Stock and the issuance of Receipts.
Section 3.04. Warranty as to Receipts. The Depositary hereby
represents and warrants that the Receipts, when issued, will be legal, valid and
binding obligations of the Depositary, enforceable against the Depositary in
accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium and other laws affecting
creditors' rights generally and by general equity principles. Such
representation and warranty shall survive the deposit of shares of Stock and the
issuance of the Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.01. Cash Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution with respect to the
Stock, the Depositary shall, subject to Section 3.02, distribute to record
holders of Receipts on the record date fixed pursuant to Section 4.04 the pro
rata portion, as nearly as practicable, of such dividend or distribution
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applicable to the number of Depositary Shares evidenced by the Receipts held by
such holders; provided, however, that in case the Company or the Depositary
shall be required to withhold and shall withhold any monies from any cash
dividend or other cash distribution in respect of the Stock on account of taxes,
the distribution in respect of Depositary Shares shall be reduced accordingly.
The Depositary shall distribute or make available for distribution, as the case
may be, only such amount, however, as can be distributed without attributing to
any holder of a Receipt a fraction of one cent, and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and be treated as part of the next succeeding
distribution to record holders of Receipts.
Section 4.02. Distributions Other Than Cash. Whenever the
Depositary shall receive any property (including securities) for distribution in
a form other than cash with respect to the Stock, the Depositary shall, subject
to Section 3.02, distribute to record holders of Receipts on the record date
fixed pursuant to Section 4.04 the pro rata portion, as nearly as practicable,
of such property (including securities) received by it applicable to the number
of Depositary Shares evidenced by the Receipts held by such holders, in any
manner that the Depositary may deem equitable and practicable for accomplishing
such distribution. If in the opinion of the Depositary such distribution cannot
be made proportionately among such record holders, or if for any other reason
(including any requirement that the Company or the Depositary withhold an amount
on account of taxes) the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary may, with the approval of
the Company, adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the sale of the property thus
received, or any part thereof. The net proceeds of any such sale shall, subject
to Section 3.02, be distributed or made available for distribution, as the case
may be, by the Depositary to record holders of Receipts in accordance with the
provisions of Section 4.01 for a distribution received in cash. The Depositary
shall have the right, prior to making any distribution of such securities, to
require the Company to provide an opinion of counsel stating that such
securities have been registered under the Securities Act or do not need to be so
registered.
Section 4.03. Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the persons in
whose names the shares of Stock are recorded on the books of the Company any
rights, preferences or privileges to subscribe for or to purchase any securities
or any rights, preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made available by the
Depositary to the record holders of Receipts, pro rata in proportion to the
number of the shares of Stock represented by each such Receipt, in such manner
as the Depositary may determine, either by the issue to such record holders of
warrants representing such rights, preferences or privileges or by such other
method as may be approved by the Depositary in its discretion with the approval
of the Company; provided, however, that (i) if at the time of issue or offer of
any such rights, preferences or privileges the Depositary determines that it is
not lawful or (after consultation with the Company) not feasible to make such
rights, preferences or privileges available to holders of Receipts by the issue
of warrants or otherwise, or (ii) if instructed by holders of Receipts (and to
the extent so instructed by such holders) who do not desire to exercise such
rights, preferences or privileges, then the Depositary, in its discretion (with
the approval of the Company, in any case where the Depositary has determined
that it is not feasible to make such rights, preferences or privileges
available), may, if applicable laws or the terms of such rights, preferences or
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privileges permit such transfer, sell such rights, preferences or privileges at
public or private sale, at such place or places and upon such terms as it may
deem proper. The net proceeds of any such sales shall be distributed by the
Depositary to the record holders of Receipts entitled thereto as provided by
Section 4.01 in the case of a distribution received in cash. The Depositary
shall have the right, prior to making any distribution of such rights,
preferences or privileges, to require the Company to provide an opinion of
counsel stating that such rights, preferences or privileges have been registered
under the Securities Act or do not need to be so registered.
If registration under the Securities Act of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that it
will file promptly a registration statement pursuant to the Securities Act with
respect to such rights, preferences or privileges and securities and use its
reasonable best efforts and take all steps available to it to cause such
registration statement to become effective sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges. In no event shall the
Depositary make available to the holders of Receipts any right, preference or
privilege to subscribe for or to purchase any security unless and until such
registration statement shall have become effective, or unless the offering and
sale of such securities to holders are exempt from registration under the
Securities Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees with the Depositary that the Company will use
its reasonable best efforts to take such action or obtain such authorization,
consent or permit sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges.
Section 4.04. Notice of Dividends, Etc.; Fixing of Record Date
for Holders of Receipts. (i) Whenever any cash dividend or other cash
distribution shall become payable or any distribution of property (including
securities) other than cash shall be made, (ii) if rights, preferences or
privileges shall at any time be offered with respect to Stock, (iii) whenever
the Depositary shall receive notice of (a) any meeting at which holders of
shares of Stock are entitled to vote or of which holders of shares of Stock are
entitled to notice, or (b) any election on the part of the Company to redeem any
shares of Stock, or (iv) whenever the Depositary and the Company shall decide it
is appropriate, the Depositary shall, in each such instance, fix a record date
(which shall be the same date as the record date fixed by the Company with
respect to the Stock) for the determination of the holders of Receipts who shall
be entitled hereunder to receive a distribution in respect of such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or who should be entitled to receive notice of such meeting or for any
other appropriate reasons.
Section 4.05. Voting Rights. Upon receipt of notice of any
meeting at which the holders of shares of Stock are entitled to vote, the
Depositary shall, within 3 business days, mail to the record holders of Receipts
a notice which shall contain (i) such information as is contained in such notice
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of meeting and (ii) a statement that the holders may, subject to any applicable
restrictions, authorize the Depositary to exercise the voting rights pertaining
to the number of shares of Stock represented by their respective Depositary
Shares (including authority to give a discretionary proxy to a person designated
by the Company) and a brief statement as to the manner in which such
authorization may be given. The Depositary shall vote or cause to be voted, in
accordance with the authorization referred to above, the votes relating to the
shares of Stock (or portion thereof) represented by the Depositary Shares
evidenced by all Receipts as to which such authorization has been received. The
Company hereby agrees to take all such action as it deems necessary in order to
enable the Depositary to vote such shares of Stock or cause such shares of Stock
to be voted. In the absence of authorization from the holder of a Receipt, the
Depositary will abstain from voting (but, at its discretion, not from appearing
at any meeting with respect to the Stock unless directed to the contrary by the
record holders of all the Receipts) to the extent of the shares of Stock (or
portion thereof) represented by the Depositary Shares evidenced by such Receipt.
Section 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, Etc. Upon any change in par or stated
value, split-up, combination or any other reclassification of the Stock, or upon
any recapitalization, reorganization, merger, amalgamation or consolidation to
which the Company is a party or sale of all or substantially all of the
Company's assets, the Depositary may with the approval of, and shall upon the
instructions of, the Company, and (in either case) in such manner as to retain
as nearly as possible the percentage ownership interest in Stock of holders of
the Receipts immediately prior to such event, (i) make such adjustments in (a)
the fraction of an interest in one share of Stock represented by one Depositary
Share and (b) the ratio of the redemption price per Depositary Share to the
redemption price of a share of Stock, in each case as it may deem necessary to
reflect the effects of such change in par or stated value, split-up, combination
or other reclassification of Stock, or of such recapitalization, reorganization,
merger, amalgamation or consolidation or sale, and (ii) treat any securities
which shall be received by the Depositary in exchange for or upon conversion of
or in respect of the shares of Stock as new deposited securities so received in
exchange for or upon conversion of or in respect of the shares of Stock. In any
such case the Depositary may in its discretion, with the approval of the
Company, execute and deliver additional Receipts, or may call for surrender of
all outstanding Receipts to be exchanged for new Receipts specifically
describing such new deposited securities.
Anything to the contrary herein or in the Receipt
notwithstanding, record holders of Receipts shall have the right from and after
the effective date or any such change in par or stated value, split-up,
combination or other reclassification of the Stock or any such recapitalization,
reorganization, merger, amalgamation, consolidation or sale, to the extent that
holders of shares of Stock had the right, prior to or on the applicable
effective date, to convert, exchange or surrender shares of Stock into or for
other stock, securities, property or cash, to surrender such Receipts to the
Depositary with instructions to convert, exchange or surrender the shares of
Stock represented thereby only into or for, as the case may be, the kind and
amount of shares of stock and other securities and property and cash into which
the shares of Stock represented by such Receipts has been converted or for which
such shares of Stock might have been exchanged or surrendered immediately prior
to the effective date of such transaction.
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Section 4.07. Inspection of Reports. The Depositary shall make
available for inspection by record holders of Receipts at the Depositary's
Office, and at such other places as it may from time to time deem advisable, any
reports and communications received from the Company which are received by the
Depositary as the holder of shares of Stock.
Section 4.08. List of Receipt Holders. Promptly, upon request
by the Company, the Depositary shall furnish to it a list, as of a specified
date, of the names and addresses of all record holders, and the number of shares
of Stock represented by the Receipts held by such holders.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
Section 5.01. Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar. Upon execution of this Deposit Agreement,
the Depositary shall maintain, at the Depositary's Office, facilities for the
execution and delivery, registration and registration of transfer, surrender and
exchange of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange of
Receipts, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall, with the approval of the Company,
appoint a Registrar for registration of such Receipts or Depositary Shares in
accordance with any requirements of any applicable stock exchange in which the
Receipts or the Depositary Shares may be listed. Such Registrar (which may be
the Depositary if so permitted by the requirements of such exchange) may be
removed and a substitute Registrar appointed by the Depositary upon the request
or with the approval of the Company. If the Receipts, the Depositary Shares or
the shares of Stock are listed on one or more other stock exchanges, the
Depositary will, at the request of the Company, arrange such facilities for the
delivery, registration, registration of transfer, surrender and exchange of such
Receipts, such Depositary Shares or such shares of Stock as may be required by
law or applicable stock exchange regulation. The Depositary shall serve as the
initial Registrar.
The Registrar shall maintain books at the Depositary's Office
(or at such other place as shall be approved by the Company and of which the
holders of Receipts shall have reasonable notice) for the registration of
transfer of Receipts, which books at all reasonable times shall be open for
inspection by the record holders of Receipts; provided that the exercise of such
right shall be governed by the provisions of Section 607.1602 of the Florida
Business Corporation Act, as amended, or any successor provision thereto,
anything herein to the contrary notwithstanding.
The Depositary may cause the Registrar to close the books with
respect to the Receipts, at any time or from time to time, when the register of
stockholders of the Company is closed with respect to the Stock or when such
action is deemed necessary or advisable by the Depositary, any Depositary's
Agent or the Company because of any requirement of law or of any government,
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governmental body or commission, stock exchange or any applicable self-
regulatory body, including, without limitation, the NASD.
Section 5.02. Prevention or Delay by the Depositary, the
Depositary's Agents, the Registrar or the Company. Neither the Depositary nor
any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law, or regulation thereunder, of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Company's Articles of Incorporation, as amended (including the
Amendment), or by reason of any act of God or war, the Depositary, the
Depositary's Agent, the Registrar or the Company shall be prevented or forbidden
from doing or performing any act or thing which the terms of this Deposit
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent, any Registrar or the Company incur any liability or be
subject to any obligation (i) by reason of any nonperformance or delay, caused
as aforesaid, in the performance of any act or thing which the terms of this
Deposit Agreement provide shall or may be done or performed, or (ii) by reason
of any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement, except in the event of the negligence or misconduct of the
party charged with such exercise or failure to exercise.
Section 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor the Company assumes any obligation or
shall be subject to any liability under this Deposit Agreement to holders of
Receipts other than for its negligence or misconduct.
Neither the Depositary nor any Depositary's Agent nor any
Registrar nor the Company shall be liable to any party hereto for any action or
any failure to act by it in reliance upon the written advice of legal counsel or
accountants, or information from any person presenting shares of Stock for
deposit or any holder of a Receipt. The Depositary, any Depositary's Agent, any
Registrar and the Company may each rely and shall each be protected in acting
upon any written notice, request, direction or other document believed by it to
be genuine and to have been signed or presented by the party or parties
specified in this Deposit Agreement.
The Depositary undertakes and shall cause any Registrar to
undertake, to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement using its reasonable best efforts and in good
faith. The parties hereto acknowledge that no implied covenants or obligations
shall be read into this Deposit Agreement against the Depositary or any
Registrar or against the Company with respect to the Depositary and any
Registrar. The Depositary will indemnify the Company against any liability that
may arise out of acts performed or omitted by the Depositary or any Depositary's
Agent due to its or their gross negligence or bad faith. The Depositary, any
Depositary's Agent, any Registrar and the Company may own and deal in any class
of securities of the Company and its affiliates and in Receipts subject to the
provisions of applicable law. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates.
Section 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by notice of its election so to do delivered to the
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Company, such resignation to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to take effect
upon the appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided.
In case the Depositary acting hereunder shall at any time
resign or be removed, the Company shall, within 60 days after the delivery of
the notice of resignation or removal, as the case may be, appoint a successor
Depositary, which shall be a bank or trust company having its principal office
in the United States of America and having a combined capital and surplus of at
least $500,000,000. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder and agreeing to become a party to this Deposit Agreement,
and thereupon such successor Depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Company, shall execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in all shares of Stock deposited with such predecessor and any monies or
property held hereunder to such successor and shall deliver to such successor a
list of the record holders of all outstanding Receipts. Any successor Depositary
shall promptly mail notice of its appointment to the record holders of Receipts.
Any corporation or other entity into or with which the
Depositary may be merged, consolidated or converted, or to which the Depositary
may sell all or substantially all its assets, shall be the successor of such
Depositary without the execution or filing of any document or any further act.
Such successor Depositary may authenticate the Receipts in the name of the
predecessor Depositary or in the name of the successor Depositary.
Section 5.05. Corporate Notices and Reports. The Company
agrees that it will deliver to the Depositary and the Depositary will, promptly
after receipt thereof, transmit to the record holders of Receipts, in each case
at the address furnished to it pursuant to Section 4.08, all notices and reports
(including without limitation financial statements) required by law, the rules
of any national securities exchange upon which the shares of Stock, the
Depositary Shares or the Receipts are listed or by the Company's Articles of
Incorporation, as amended (including the Amendment), to be furnished by the
Company to holders of shares of Stock. Such transmission will be at the
Company's expense and the Company will provide the Depositary with such number
of copies of such documents as the Depositary may reasonably request.
Section 5.06. Indemnification by the Company. The Company
shall indemnify the Depositary, any Depositary's Agent and any Registrar
against, and hold each of them harmless from, any loss, liability or expense
(including the reasonable costs and expenses of defending itself) which may
arise out of (i) acts performed or omitted in connection with this Deposit
Agreement and the Receipts (a) by the Depositary, any Registrar or any of their
respective agents (including any Depositary's Agent), except for any liability
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arising out of gross negligence or willful misconduct on the respective parts of
any such person or persons, or (b) by the Company or any of its agents, or (ii)
the offer, sale or registration of the Receipts or shares of Stock pursuant to
the provisions hereof. The obligations of the Company set forth in this Section
5.06 shall survive any termination of this Agreement and any succession of any
Depositary, Registrar or Depositary's Agent.
Section 5.07. Charges and Expenses. The Company shall pay all
charges of the Depositary in connection with the initial deposit of shares of
Stock and the initial issuance of the Depositary Shares, and redemption of
shares of Stock at the option of the Company. All other transfer and other taxes
and governmental charges shall be at the expense of holders of Receipts. The
Depositary may refuse to effect any transfer of a Receipt or any withdrawal of
shares of Stock evidenced thereby until all such taxes and charges with respect
to such Receipt or shares of Stock are paid by the holder thereof. If, at the
request of a holder of Receipts, the Depositary incurs charges or expenses for
which it is not otherwise liable hereunder, such holder will be liable for such
charges and expenses.
All other charges and expenses of the Depositary and any
Depositary's Agent hereunder and of any Registrar (including, in each case,
reasonable fees and expenses of counsel) incident to the performance of their
respective obligations hereunder will be payable by the Company only after prior
consultation and agreement between the Depositary and the Company and consent by
the Company to the incurrence of such expenses, which consent shall not be
unreasonably withheld. The Depositary shall present any statement for charges
and expenses to the Company promptly, unless the Company shall agree otherwise.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.01. Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable; provided, however, that no such amendment
which shall materially and adversely alter the rights of the holders of Receipts
shall be effective unless such amendment shall have been approved by the record
holders of Receipts representing at least a majority of the Depositary Shares
then outstanding. Every holder of an outstanding Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold such Receipt,
to consent and agree to such amendment and to be bound by the Deposit Agreement
as amended thereby.
Section 6.02. Termination. This Deposit Agreement may be
terminated by the Company or the Depositary only if (i) all outstanding
Depositary Shares shall have been redeemed pursuant to Section 2.03, (ii) there
shall have been made a final distribution in respect of the Stock in connection
with any liquidation, dissolution or winding up of the Company and such
distribution shall have been distributed to the record holders of Receipts
pursuant to Section 4.01 or 4.02, as applicable, or (iii) such termination is
necessary to preserve the Company's status as a real estate investment trust.
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Whenever the Deposit Agreement has been terminated pursuant to
(ii) above, the Depositary will mail notice of such termination to the record
holders of all Receipts then outstanding at least 30 days prior to the date
fixed in that notice for termination of the Deposit Agreement. If any Depositary
Shares remain outstanding after the date of termination, the Depositary
thereafter will discontinue the transfer of Depositary Shares, will suspend the
distribution of dividends to the owners thereof, and will not give any further
notices (other than notice of such termination) or perform any further acts
under this Deposit Agreement, except that the Depositary will continue (i) to
collect dividends on the outstanding shares of Stock and any other distributions
with respect thereto, (ii) to deliver or cause to be delivered shares of Stock,
together with such dividends and distributions, or principal and interest, and
the net proceeds of any sales of rights, preferences, privileges or other
property (other than real property) in exchange for Depositary Shares
surrendered. At any time after the expiration of three years from the date of
termination, the Depositary may sell the shares of Stock then held by it at a
public or private sale, at such place or places and upon such terms as it deems
proper and may thereafter hold the net proceeds of such sale, without liability
for interest, for the pro rata benefit of the owners of the Depositary Shares
which have not theretofore been surrendered. Subject to applicable escheat laws,
any monies set aside by the Company in respect of any payment with respect to
the shares of Stock represented by the Depositary Shares, or dividends thereon,
and unclaimed at the end of three years from the date upon which such payment is
due and payable shall revert to the general funds of the Company, after which
reversion the holders of Receipts evidencing such Depositary Shares shall look
only to the general funds of the Company for payment thereof.
Upon the termination of this Deposit Agreement, the parties
hereto shall be discharged from all obligations under this Deposit Agreement
except for their respective obligations under Sections 5.03, 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts taken together
shall constitute one and the same instrument.
Section 7.02. Exclusive Benefit of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal or
equitable right, remedy or claim to any other person whatsoever.
Section 7.03. Invalidity of Provisions. In case any one or
more of the provisions contained in this Deposit Agreement or in the Receipts
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or modified thereby.
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Section 7.04. Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or telegram,
telecopy or telex confirmed by letter, addressed to the Company at 121 W.
Forsyth Street, Jacksonville, Florida 32202, telephone: (904) 598-7000,
telecopy: (904) 354-1832, Attention: J. Christian Leavitt, or at any other
address and to the attention of any other person of which the Company shall have
notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or
under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail or by telegram, telecopy or telex
confirmed by letter, addressed to the Depositary at the Depositary's Office, at
1525 West W.T. Harris Boulevard, Charlotte, North Carolina 28288-1153, telephone
(800) 829-8432, Attention: Equity Services, or at any other address and to the
attention of any other person of which the Depositary shall have notified the
Company in writing.
Any and all notices to be given to any record holder of a
Receipt hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or by telegram,
telecopy or telex confirmed by letter, addressed to such record holder at the
address of such record holder as it appears on the books of the Depositary, or
if such holder shall have filed with the Depositary a written request that
notices intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram, telecopy or
telex shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a telegram or
telex message) is deposited, postage prepaid, in a post office letter box. The
Depositary or the Company may, however, act upon any telegram or telecopy
message received by it from the other or from any holder of a Receipt,
notwithstanding that such telegram or telecopy message shall not subsequently be
confirmed by letter or as aforesaid.
Section 7.05. Depositary's Agents. The Depositary may from
time to time appoint any Depositary's Agent to act in any respect for the
Depositary for the purposes of this Deposit Agreement and may at any time
appoint additional Depositary's Agents and vary or terminate the appointment of
such Depositary's Agents. The Depositary will promptly notify the Company of any
such action.
Section 7.06. Holders of Receipts are Parties. By acceptance
of delivery of the Receipts, any holder from time to time of such Receipt shall
be deemed to have agreed to become a party to this Deposit Agreement and to be
bound by all of the terms and conditions hereof and of the Receipts to the same
extent as though such person executed this Deposit Agreement.
Section 7.07. Governing Law. THIS DEPOSIT AGREEMENT AND THE
RECEIPTS AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND
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THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF FLORIDA (WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
Section 7.08. Inspection of Deposit Agreement. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's Agents
and shall be open to inspection during business hours at the Depositary's Office
and the respective offices of the Depositary's Agents, if any, by any holder of
a Receipt.
Section 7.09. Headings. The headings of articles and sections
in this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or the Receipts or to have any bearing upon the
meaning or interpretation of any provision contained herein or in the Receipts.
-18-
IN WITNESS WHEREOF, the Company and the Depositary have duly
executed this Deposit Agreement as of the day and year first above set forth,
and all holders of Receipts shall become parties hereto by and upon acceptance
by them of delivery of Receipts issued in accordance with the terms hereof.
REGENCY CENTERS CORPORATION
By: ____________________________________
Authorized Officer
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Depositary
By: ____________________________________
Authorized Officer
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FORM OF RECEIPT
CERTIFICATE FOR
-----------------
DEPOSITARY SHARES
TRANSFERABLE CUSIP _______________
DEPOSITARY RECEIPT
SEE REVERSE FOR
CERTAIN DEFINITIONS
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, EACH DEPOSITARY SHARE REPRESENTING A
ONE-TENTH (1/10TH) INTEREST IN ONE SHARE OF 7.25% SERIES 4 CUMULATIVE REDEEMABLE
PREFERRED STOCK
REGENCY CENTERS CORPORATION
A Florida Corporation
WACHOVIA BANK, NATIONAL ASSOCIATION, as Depositary (the "Depositary"), hereby
certifies that
is the registered owner of ____________________ DEPOSITARY SHARES ("Depositary
Shares"), each Depositary Share representing a one-tenth (1/10th) interest in
one share of 7.25% Series 4 Cumulative Redeemable Preferred Stock, $0.01 par
value (the "Stock"), of Regency Centers Corporation, a Florida corporation (the
"Corporation"), on deposit with the Depositary, subject to the terms and
entitled to the benefits of the Deposit Agreement dated as of August 31, 2004
(the "Deposit Agreement"), among the Corporation, the Depositary and the holders
from time to time of Depositary Receipts evidencing the Depositary Shares. By
accepting this Depositary Receipt, the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit Agreement.
This Depositary Receipt shall not be valid or obligatory for any purpose or be
entitled to any benefits under the Deposit Agreement unless it shall have been
executed by the Depositary by the manual signature of a duly authorized officer
or, if executed in facsimile by the Depositary, countersigned by a Registrar in
respect of the Depositary Receipts by a duly authorized officer thereof.
Dated: ___________________
WACHOVIA BANK, NATIONAL ASSOCIATION
Depositary and Registrar
By: _______________________________
Authorized Officer
REGENCY CENTERS CORPORATION
REGENCY CENTERS CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH HOLDER OF A
RECEIPT WHO SO REQUESTS A COPY OR SUMMARY OF THE DEPOSIT AGREEMENT AND A COPY OR
SUMMARY OF THE PORTIONS OF THE ARTICLES OF INCORPORATION ESTABLISHING THE
DESIGNATIONS, RELATIVE RIGHTS, PREFERENCES AND LIMITATIONS APPLICABLE TO SHARES
OF EACH CLASS AND THE VARIATIONS IN RIGHTS, PREFERENCES AND LIMITATIONS
DETERMINED FOR EACH SERIES (AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO
DETERMINE VARIATIONS FOR FUTURE SERIES) WHICH THE CORPORATION IS AUTHORIZED TO
ISSUE, INCLUDING THE 7.25% SERIES 4 CUMULATIVE REDEEMALBE PREFERRED STOCK. ANY
SUCH REQUEST SHOULD BE ADDRESSED TO REGENCY CENTERS CORPORATION, 121 W. FORSYTH
STREET, JACKSONVILLE, FLORIDA 32202, ATTENTION: MS. DIANE ORTOLANO.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO OWNERSHIP LIMITS AND
TRANSFER RESTRICTIONS SET FORTH IN ARTICLES OF THE RESTATED ARTICLES OF
INCORPORATION OF THE CORPORATION FOR THE PURPOSE OF MAINTAINING THE
CORPORATION'S STATUS AS A REAL ESTATE INVESTMENT TRUST AND A DOMESTICALLY
CONTROLLED REAL ESTATE INVESTMENT TRUST UNDER THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (OR ANY SUCCESSOR LEGISLATION) A COPY OF SUCH ARTICLES WILL BE
FURNISHED BY THE CORPORATION TO ANY SHAREHOLDER UPON REQUEST AND WITHOUT CHARGE.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this Depositary Receipt, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - __________ Custodian __________
(Cust) (Minor)
under Uniform Gifts to
Minors Act ______________
(State)
UNIF TRF MIN ACT - _________ Custodian _________ (until age______) (Cust) _____
under Uniform Transfers to Minors Act(Minor) _______________ (State)
Additional abbreviations may also be
used though not in the above list.
CERTIFICATE FOR 5,000,000
DEPOSITARY SHARES
CUSIP 758849 40 0
GLOBAL SEE REVERSE FOR
DEPOSITARY RECEIPT CERTAIN DEFINITIONS
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, EACH DEPOSITARY SHARE
REPRESENTING A ONE-TENTH (1/10TH) INTEREST IN ONE SHARE OF 7.25%
SERIES 4 CUMULATIVE REDEEMABLE PREFERRED STOCK
REGENCY CENTERS CORPORATION
A Florida Corporation
WACHOVIA BANK, NATIONAL ASSOCIATION, as Depositary (the
"Depositary"), hereby certifies that
CEDE & CO.
is the registered owner of 5,000,000 DEPOSITARY SHARES ("Depositary Shares"),
each Depositary Share representing a one-tenth (1/10th) interest in one share of
7.25% Series 4 Cumulative Redeemable Preferred Stock, $0.01 par value, (the
"Stock"), of Regency Centers Corporation, a Florida corporation (the
"Corporation"), on deposit with the Depositary, subject to the terms and
entitled to the benefits of the Deposit Agreement dated as of August 31, 2004
(the "Deposit Agreement"), between the Corporation and the Depositary. By
accepting this Depositary Receipt, the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit Agreement.
This Depositary Receipt shall not be valid or obligatory for any purpose or be
entitled to any benefits under the Deposit Agreement unless it shall have been
executed by the Depositary by the manual signature of a duly authorized officer
or, if executed in facsimile by the Depositary, countersigned by a Registrar in
respect of the Depositary Receipts by a duly authorized officer thereof.
This global depositary receipt shall evidence the aggregate amount of
Depositary Shares from time to time indicated in the records of the Depositary
and the aggregate amount of Depositary Shares evidenced hereby may from time to
time be increased or decreased by making adjustments on such records of the
Depositary.
Dated: August 31, 2004
WACHOVIA BANK, NATIONAL ASSOCIATION
Depositary and Registrar
By:
-------------------------------------------------
Authorized Officer
REGENCY CENTERS CORPORATION
REGENCY CENTERS CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH HOLDER OF A
RECEIPT WHO SO REQUESTS A COPY OR SUMMARY OF THE DEPOSIT AGREEMENT AND A COPY OR
SUMMARY OF THE PORTIONS OF THE ARTICLES OF INCORPORATION ESTABLISHING THE
DESIGNATIONS, RELATIVE RIGHTS, PREFERENCES AND LIMITATIONS APPLICABLE TO SHARES
OF EACH CLASS AND THE VARIATIONS IN RIGHTS, PREFERENCES AND LIMITATIONS
DETERMINED FOR EACH SERIES (AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO
DETERMINE VARIATIONS FOR FUTURE SERIES) WHICH THE CORPORATION IS AUTHORIZED TO
ISSUE, INCLUDING THE 7.25% SERIES 4 CUMULATIVE REDEEMABLE PREFERRED STOCK. ANY
SUCH REQUEST SHOULD BE ADDRESSED TO REGENCY CENTERS CORPORATION, 121 WEST
FORSYTH STREET, SUITE 200, JACKSONVILLE, FLORIDA 32202, ATTENTION: MS. DIANE
ORTOLANO.
The shares represented by this certificate are subject to ownership limits and
transfer restrictions set forth in articles of the restated articles of
incorporation of the corporation for the purpose of maintaining the
corporation's status as a real estate investment trust under the internal
revenue code of 1986, as amended (or any successor legislation). A copy of such
articles will be furnished by the corporation to any shareholder upon request
and without charge.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
The following abbreviations, when used in the inscription on
the face of this Depositary Receipt, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - __________ Custodian _____________
(Cust) (Minor)
under Uniform Gifts to Minors Act _____________
(State)
UNIF TRF MIN ACT - ___________ Custodian ____________
(Cust) (Minor)
(until age ) under Uniform Transfers to Minors Act
_______________________________________
(State)
Additional abbreviations may also be used
though not in the above list.
2
[GRAPHIC OMITTED]
: FOLEY
FOLEY & LARDNER LLP
ATTORNEYS AT LAW
ONE INDEPENDENT DRIVE, SUITE 1300
August 27, 2004 JACKSONVILLE, FLORIDA 32202-5017
P. O. Box 240
JACKSONVILLE, FLORIDA 32201-0240
904.359.2000 TEL
904.359.8700 FAX
www.foley.com
WRITER'S DIRECT LINE
904.359.8713
lkelso@foley.com EMAIL
CLIENT/MATTER NUMBER
040521-0157
Regency Centers Corporation
121 West Forsyth Street, Suite 200
Jacksonville, Florida 32202
Re: Registration Statement on Form S-3
Gentlemen:
This opinion is being furnished in connection with the Registration
Statement on Form S-3 (Registration No. 333-37911) of Regency Centers
Corporation ("Regency") under the Securities Act of 1933, as amended, for the
issuance of 5,000,000 Depositary Shares (the "Depositary Shares") each
representing 1/10 of a share of 7.25% Series 4 Cumulative Redeemable Preferred
Stock of Regency (liquidation preference $25 per Depositary Share).
In connection with the issuance of such securities, we have examined
and are familiar with: (a) the articles of incorporation and bylaws of Regency,
as presently in effect, (b) the proceedings of and actions taken by the Board of
Directors of Regency in connection with the issuance of the Depositary Shares
and (c) such other records, certificates and documents as we have considered
necessary or appropriate for purposes of this opinion.
Based on the documents set forth above, we are of the opinion that the
Depositary Shares have been duly authorized, and when duly issued and delivered
against payment therefor, will be legally issued, fully paid and nonassessable.
The foregoing opinion is limited to the laws of the state of Florida.
We assume no obligation to supplement this opinion letter if any applicable law
changes after the date hereof or if we become aware of any fact that might
change the opinions expressed herein after the date hereof.
We hereby consent to the inclusion of this opinion as Exhibit 5 in said
Registration Statement and to the reference to this firm under the caption
"Validity of Shares" in the prospectus supplement relating to the offering of
the Depositary Shares dated August 4, 2004. In giving this consent we do not
hereby admit that we come within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
or regulations of the Securities and Exchange Commission promulgated thereunder.
Sincerely,
FOLEY & LARDNER LLP
By: /s/ Foley & Lardner LLP
-------------------------------------
BRUSSELS LOS ANGELES ORLANDO SAN FRANCISCO TAMPA
CHICAGO MADISON SACRAMENTO SILICON VALLEY TOKYO
DETROIT MILWAUKEE SAN DIEGO TALLAHASSEE WASHINGTON, D.C.
JACKSONVILLE NEW YORK SAN DIEGO/DEL MAR WEST PALM BEACH
[GRAPHIC OMITTED]
: FOLEY
FOLEY & LARDNER LLP
ATTORNEYS AT LAW
ONE INDEPENDENT DRIVE, SUITE 1300
August 27, 2004 JACKSONVILLE, FLORIDA 32202-5017
P. O. Box 240
JACKSONVILLE, FLORIDA 32201-0240
904.359.2000 TEL
904.359.8700 FAX
www.foley.com
WRITER'S DIRECT LINE
904.359.8713
lkelso@foley.com EMAIL
CLIENT/MATTER NUMBER
040521-0157
Regency Centers Corporation
121 West Forsyth Street, Suite 200
Jacksonville, Florida 32202
Re: Registration Statement on Form S-3
Ladies and Gentlemen
You have requested our opinions as tax counsel to Regency Centers
Corporation (the "Company") concerning the federal income tax consequences in
connection with the registration statement on Form S-3 (Registration No.
333-37911) (the "Registration Statement") and with respect to qualification of
the Company as a real estate investment trust (a "REIT") for federal income tax
purposes, for the issuance of 5,000,000 Depositary Shares (the "Depositary
Shares") each representing 1/10 of a share of 7.25% Series 4 Cumulative
Redeemable Preferred Stock of the Company (liquidation preference $25 per
Depositary Share).
In connection with the opinions rendered below, we have reviewed the
Registration Statement, including the prospectus supplement dated August 4, 2004
relating to the offering of the Depositary Shares (the "Prospectus"), the
articles of incorporation and bylaws of the Company and such other documents
that we deemed relevant. The opinions expressed in this letter are based upon
certain factual representations set forth in the Registration Statement, the
Prospectus and in certificates of officers of the Company.
In connection with the opinions rendered below, we have assumed
generally that:
1. each of the documents referred to above has been duly
authorized, executed, and delivered; is authentic, if an original, or is
accurate, if a copy; and has not been amended;
2. during its short taxable year ended December 31, 1993 and
subsequent taxable years, the Company has operated and will continue to operate
in such a manner that makes and will continue to make the factual
representations contained in a certificate, dated as of the date hereof and
executed by a duly appointed officer of the Company (the "Officer's
Certificate"), true for such years;
3. the Company will not make any amendments to its organizational
documents or to the organizational documents of Regency Realty Group, Inc., a
Florida corporation ("Management Company"), after the date of this opinion that
would affect its qualification as a REIT for any taxable year;
BRUSSELS LOS ANGELES ORLANDO SAN FRANCISCO TAMPA
CHICAGO MADISON SACRAMENTO SILICON VALLEY TOKYO
DETROIT MILWAUKEE SAN DIEGO TALLAHASSEE WASHINGTON, D.C.
JACKSONVILLE NEW YORK SAN DIEGO/DEL MAR WEST PALM BEACH
Regency Centers Corporation
August 27, 2004
Page 2
4. no actions will be taken by the Company or Management Company
after the date hereof that would have the effect of altering the facts upon
which the opinion set forth below is based.
In connection with the opinions rendered below, we also have relied
upon the correctness of the factual representations contained in the Officer's
Certificate.
Based solely on the documents and assumptions set forth above and the
factual representations set forth in the Officer's Certificate, and without
further investigation, we are of the opinion that the summaries set forth in the
Prospectus under the caption "Certain Federal Income Tax Considerations" are
accurate in all material respects as to matters of law and legal conclusions. In
addition, based upon and subject to the foregoing, we confirm our specific
opinions in the Prospectus under the caption "Certain Federal Income Tax
Considerations".
The foregoing opinions are based on current provisions of the Internal
Revenue Code of 1986, as amended (the "Code"), and the Treasury regulations
thereunder (the "Regulations"), published administrative interpretations
thereof, and published court decisions, all of which are subject to change
either prospectively or retroactively. The Internal Revenue Service has not
issued Regulations or administrative interpretations with respect to various
provisions of the Code relating to REIT qualification. No assurance can be given
that the law will not change in a way that will prevent the Company from
qualifying as a REIT or that may change the other legal conclusions stated
herein.
The foregoing opinion is limited to the U.S. federal income tax matters
addressed herein, and no other opinions are rendered with respect to other
federal tax matters or to any issues arising under the tax laws of any other
country, or any state or locality. We undertake no obligation to update the
opinion expressed herein after the date of this letter.
We hereby consent to the inclusion of this opinion as Exhibit 8 in said
Registration Statement and to the reference to this firm under the caption
"Certain Federal Income Tax Considerations" in the Prospectus. In giving this
consent we do not hereby admit that we come within the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as amended,
or the rules or regulations of the Securities and Exchange Commission
promulgated thereunder.
Sincerely,
FOLEY & LARDNER LLP
By: /s/ Foley & Lardner LLP
-------------------------------------
Exhibit 12
REGENCY CENTERS CORPORATION
Ratio of Earnings to Fixed Charges
(amounts in thousands)
Six Months Ended For the Years Ended
---------------------- -------------------------------------------------------
06/30/2004 06/30/2003 2003 2002 2001 2000 1999
---- ---- ---- ---- ----
Continuing Operations (before minority interest) 57,441 58,333 143,581 113,853 113,177 102,155 91,339
Less: Minority interest (31) (97) (284) (319) (323) (307) (2,265)
Subtract: equity in income of
unconsolidated partnerships (4,689) (4,320) (11,276) (5,764) (3,439) (3,139) (4,688)
Add: distributions from operations JV's 7,266 4,929 14,760 5,522 1,801 - -
Add: distributions from investment JV's 18,108 10,303 20,483 11,784 15,011 3,110 704
Add: fixed charges 60,997 67,889 133,480 133,705 132,051 118,942 85,709
Subtract: preferred unit and stock distributions (12,957) (18,849) (34,001) (36,333) (36,440) (32,418) (14,613)
Subtract: capitalized interest (6,504) (6,192) (13,106) (13,753) (21,195) (14,553) (11,029)
---------------------- -------------------------------------------------------
Earnings 119,631 111,996 253,637 208,695 200,643 173,790 145,157
---------------------- -------------------------------------------------------
Preferred unit distribution 10,163 17,489 29,826 33,475 33,475 29,601 12,368
Preferred stock dividend 2,794 1,360 4,175 2,858 2,965 2,817 2,245
Interest expense 41,536 42,848 86,373 83,619 74,416 71,971 60,067
Capitalized interest 6,504 6,192 13,106 13,753 21,195 14,553 11,029
---------------------- -------------------------------------------------------
Total fixed charges 60,997 67,889 133,480 133,705 132,051 118,942 85,709
---------------------- -------------------------------------------------------
Ratio of earnings to fixed charges 2.0 1.6 1.9 1.6 1.5 1.5 1.7
====================== =======================================================