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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT No. 5)
REGENCY REALTY CORPORATION
(Name of Issuer)
COMMON STOCK, $0.01 PAR VALUE
(Title of Class of Securities)
758939 10 2
(CUSIP Number)
DAVID A. ROTH
SECURITY CAPITAL U.S. REALTY
86 JERMYN STREET
LONDON SW1Y 6JD
UNITED KINGDOM
(44-171) 647 8800
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
AUGUST 28, 1997
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Sche-
dule 13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule 13d-
1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with this state-
ment / /. (A fee is not required only if the reporting person:
(1) has a previous statement on file reporting beneficial own-
ership of more than five percent of the class of securities
described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less
of such class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all
exhibits, should be filed with the Commission. See Rule
13d-1(a) for other parties to whom copies are to be sent.
(Continued on following pages)
Page 1 of 8 Pages
This Amendment No. 5 to Schedule 13D contains 31 pages
including Exhibits. The Exhibit Index appears on page 8.
CUSIP No. 758939 10 2 13D Page 2 of 8 Pages
1 NAME OF PERSON
SECURITY CAPITAL U.S. REALTY
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /x/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
BK, OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
LUXEMBOURG
7 SOLE VOTING POWER
NUMBER OF 11,249,439 (SEE ITEM 5)
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -0-
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 11,249,439 (SEE ITEM 5)
WITH
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,249,439 (SEE ITEM 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
47.0% (SEE ITEM 5)
14 TYPE OF PERSON REPORTING*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT
CUSIP No. 758939 10 2 13D Page 3 of 8 Pages
1 NAME OF PERSON
SECURITY CAPITAL HOLDINGS S.A.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /x/
3 SEC USE ONLY
4 SOURCE OF FUNDS*
BK, OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
LUXEMBOURG
7 SOLE VOTING POWER
NUMBER OF 11,249,439 (SEE ITEM 5)
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -0-
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 11,249,439 (SEE ITEM 5)
WITH
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,249,439 (SEE ITEM 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
47.0% (SEE ITEM 5)
14 TYPE OF PERSON REPORTING*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT
This Amendment No. 5 is filed by Security Capital
U.S. Realty ("Security Capital U.S. Realty"), a corporation
organized and existing under the laws of Luxembourg, and by
Security Capital Holdings S.A. ("Holdings"), a corporation or-
ganized and existing under the laws of Luxembourg and a wholly
owned subsidiary of Security Capital U.S. Realty (together with
Security Capital U.S. Realty, "SC-USREALTY"), and amends the
Schedule 13D (the "Schedule 13D") originally filed on June 21,
1996, as amended by Amendment No. 1 ("Amendment No. 1") filed
on July 15, 1996, Amendment No. 2 ("Amendment No. 2") filed on
July 3, 1997, Amendment No. 3 ("Amendment No. 3") filed on
August 8, 1997, and Amendment No. 4 ("Amendment No. 4") filed
on August 15, 1997. This Amendment No. 5 relates to shares of
common stock, par value $0.01 per share ("Common Stock"), of
Regency Realty Corporation, a Florida corporation ("Regency").
Capitalized terms used herein without definition shall have the
meanings ascribed thereto in the Schedule 13D, as amended by
Amendment No. 1, Amendment No. 2, Amendment No. 3 and Amendment
No. 4.
On August 28, 1997, SC-USREALTY purchased 1,050,000
shares of Common Stock directly from Regency for an aggregate
purchase price of $23,231,250, or $22.125 per share, pursuant
to a Subscription Agreement, dated as of August 28, 1997, by
and among Regency, Holdings and Security Capital U.S. Realty
(the "Subscription Agreement"). These funds were obtained by
SC-USREALTY under the Facility Agreement.
The purchase was pursuant to SC-USREALTY's right to
purchase up to 1,750,000 shares of Common Stock pursuant to
Amendment No. 1 to Stockholders Agreement dated as of February
10, 1997 by and among Regency, Security Capital U.S. Realty and
Holdings ("Amendment No. 1 to Stockholders Agreement"). Under
the terms of Amendment No. 1 to Stockholders Agreement, SC-
USREALTY would have had no right to purchase additional shares
of Common Stock after August 31, 1997 once it exercised its
right to purchase 1,050,000 shares of Common Stock. The
Subscription Agreement amended Amendment No. 1 to Stockholders
Agreement to provide that SC-USREALTY has right to purchase up
to an additional 700,000 shares of Common Stock by no later
than October 31, 1997.
A copy of the Subscription Agreement is attached
hereto as Exhibit 5.1, and such agreement is specifically in-
corporated herein by reference, and the description herein of
such agreement is qualified in its entirety by reference to
such agreement.
Page 4 of 8 Pages
ITEM 1. SECURITY AND ISSUER.
No material change.
ITEM 2. IDENTITY AND BACKGROUND.
No material change except as set forth above.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
No material change except as set forth above.
ITEM 4. PURPOSE OF TRANSACTION.
No material change except as set forth above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
No material change except as set forth above and be-
low.
As of August 28, 1997, SC-USREALTY beneficially owns
10,549,439 shares of Common Stock as a result of its
acquisition of 1,050,000 shares of Common Stock. In addition,
because of SC-USREALTY's right to acquire up to an additional
700,000 shares of Common Stock pursuant to the Amendment No. 1
to Stockholders Agreement (as amended by the Subscription
Agreement), SC-USREALTY may be deemed to beneficially own up to
11,249,439 shares of Common Stock. Based on SC-USREALTY's
ownership of 10,549,439 shares of Common Stock, it owns
approximately 45.4% of the outstanding Common Stock, and
approximately 39.4% on a fully diluted basis, based on the
number of outstanding shares of Common Stock and the number of
outstanding options and other securities convertible into
Common Stock (but not including the additional 700,000 shares
of Common Stock to be acquired by SC-USREALTY pursuant to
Amendment No. 1 to Stockholders Agreement (as amended by the
Subscription Agreement)). If SC-USREALTY acquires such
additional 700,000 shares of Common Stock, it will own ap-
proximately 47.0% of the outstanding Common Stock, and ap-
proximately 40.9% on a fully diluted basis, based on the number
of outstanding shares of Common Stock and the number of out-
standing options and other securities convertible into Common
Stock (and including in each case the additional 700,000 shares
of Common Stock to be acquired by SC-USREALTY pursuant to
Amendment No. 1 to Stockholders Agreement (as amended by the
Subscription Agreement)).
Except as set forth herein and as described in prior
filings, to the best knowledge and belief of SC-USREALTY, no
Page 5 of 8 Pages
transactions involving Common Stock have been effected during
the past 60 days by SC-USREALTY or by its directors, executive
officers or controlling persons.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDING OR RELATION-
SHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.
No material change except as described above.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
The following Exhibit is filed as part of this Schedule
13D:
Exhibit 5.1 Subscription Agreement, dated as of August 28,
1997, by and among Regency Realty Corporation,
Security Capital Holdings S.A. and Security
Capital U.S. Realty
Page 6 of 8 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge
and belief, I certify that the information set forth in this
statement is true, complete, and correct.
SECURITY CAPITAL U.S. REALTY
By:/s/ David A. Roth
Name: David A. Roth
Title: Vice President
SECURITY CAPITAL HOLDINGS S.A.
By:/s/ David A. Roth
Name: David A. Roth
Title: Vice President
September 9, 1997
Page 7 of 8 Pages
EXHIBIT INDEX
SEQUENTIAL
EXHIBIT DESCRIPTION PAGE NO.
5.1 Subscription Agreement, dated as of *
August 28, 1997, by and among Regency
Realty Corporation, Security Capital
Holdings S.A. and Security Capital U.S.
Realty
Exhibit 5.1
SUBSCRIPTION AGREEMENT
BY AND AMONG
REGENCY REALTY CORPORATION
SECURITY CAPITAL HOLDINGS S.A.
AND
SECURITY CAPITAL U.S. REALTY
DATED AS OF
AUGUST 28, 1997
TABLE OF CONTENTS
SECTION Page
1. SUBSCRIPTION; CLOSING; EXTENSION OF SPECIAL
PURCHASE RIGHT...................................... 2
1.1 Subscription for Company Common Stock.......... 2
1.2 Acceptance of Subscription..................... 2
1.3 Purchase Price................................. 2
1.4 CLOSING........................................ 2
1.5. EXTENSION OF SPECIAL PURCHASE RIGHT............ 3
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY....... 3
2.1 DUE INCORPORATION, ETC......................... 3
2.2 DUE AUTHORIZATION; CONSENTS; NO VIOLATIONS..... 3
2.3 CAPITALIZATION................................. 4
2.4 VALID ISSUANCE OF SHARES....................... 5
2.5 REGENCY EXCHANGE ACT REPORTS................... 5
2.6 PERMITS........................................ 6
2.7 NO ADVERSE CHANGE.............................. 6
2.8 NO DEFAULTS OR VIOLATIONS...................... 7
2.9 LITIGATION..................................... 7
2.10 TITLE TO PROPERTIES; LEASEHOLD INTERESTS....... 7
2.11 ENVIRONMENTAL MATTERS.......................... 8
2.12 Taxes.......................................... 9
2.13 EMPLOYEES: ERISA............................... 9
2.14 ACCURACY OF STATEMENTS......................... 10
2.15 TAX MATTERS; REIT AND PARTNERSHIP STATUS....... 10
2.16 COMPLIANCE WITH ORGANIZATION DOCUMENTS......... 11
2.17 FLORIDA TAKEOVER LAW........................... 11
2.18 BROKERS OR FINDERS............................. 11
2.19 SHAREHOLDER APPROVAL........................... 11
2.20 AMENDED COMPANY CHARTER; MODIFICATION
OF OWNERSHIP LIMIT............................. 11
2.21 CONSENTS....................................... 11
2.22 HSR ACT........................................ 11
2.23 RELATED TENANT LIMIT WAIVER.................... 12
3. REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER AND THE
ADVANCING PARTY..................................... 12
3.1 ORGANIZATION AND STANDING...................... 12
3.2 DUE AUTHORIZATION.............................. 12
i
3.3 CONFLICTING AGREEMENTS AND OTHER MATTERS....... 13
3.4 SOURCE OF FUNDS................................ 13
3.5 BROKERS OR FINDERS............................. 13
3.6 REIT QUALIFICATION MATTERS..................... 13
3.7 INVESTMENT COMPANY MATTERS..................... 13
3.8 INVESTMENT REPRESENTATIONS..................... 14
4. SURVIVAL; INDEMNIFICATION........................... 14
4.1 Survival....................................... 14
4.2 Indemnification by Subscriber or the Company... 14
5. MISCELLANEOUS....................................... 16
5.1 Counterparts................................... 16
5.2 Governing Law.................................. 16
5.3 Entire Agreement............................... 16
5.4 Notices........................................ 16
5.8 Expenses....................................... 18
5.9 Severability................................... 18
5.10 Further Assurances............................. 18
5.11 Joint and Several Liability; Guaranty.......... 18
ii
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Agreement") is entered
into as of August 28, 1997 by and among Regency Realty
Corporation, a Florida corporation (the "Company"), Security
Capital U.S. Realty, a Luxembourg corporation (the "Advancing
Party"), and Security Capital Holdings S.A., a Luxembourg
corporation and a wholly-owned subsidiary of the Advancing
Party ("Subscriber" or "Investor"). Capitalized terms not
otherwise defined herein have the meanings ascribed to them in
the Stock Purchase Agreement (as hereinafter defined).
WHEREAS, in connection with the Company's initial issuance
and sale to Subscriber of shares of the Company's common stock,
par value $0.01 per share (the "Company Common Stock"),
pursuant to a Stock Purchase Agreement dated as of June 11,
1996, as amended (the "Stock Purchase Agreement"), the Company,
the Advancing Party and Subscriber entered into a Stockholders
Agreement on July 10, 1996 (the "Stockholders Agreement");
WHEREAS, pursuant to the terms of the Stockholders
Agreement, in the event that the Company issues or sells shares
of capital stock of the Company, Investor is, during a
specified term, entitled (except in certain limited
circumstances) to a participation right to purchase, or
subscribe for, a total number of shares equal to up to 42.5% of
the total number of shares of capital stock proposed to be
issued by the Company in its first offering after the final
closing under the above-referenced Stock Purchase Agreement
(the "Participation Rights");
WHEREAS, the Company entered into a Contribution Agreement
and Plan of Reorganization (the "Contribution Agreement"),
dated as of February 10, 1997, by and among Branch Properties,
L.P., Branch Realty, Inc. and the Company (the "Branch
Transaction");
WHEREAS, pursuant to Section 4.2 of the Stockholders
Agreement, the transactions contemplated by the Contribution
Agreement would have triggered a participation right of
Investor to purchase or subscribe for up to 2,900,421 shares of
Company Common Stock at a purchase price of $22 1/8 per share;
WHEREAS, simultaneously with the execution of the
Contribution Agreement, the parties hereto entered into
Amendment No. 1 to Stockholders Agreement dated as of February
10, 1997 ("Amendment No. 1 to Stockholders Agreement"),
pursuant to Section 1 of which Investor waived those
participation rights under Section 4.2 of the Stockholders
Agreement which arose in connection with the Branch
Transaction, and, in lieu thereof, received the right to
purchase from the Company at a purchase price of $22 1/8 a
certain number of shares of Company Common Stock on the terms
and conditions set forth in Amendment No. 1 to Stockholders
Agreement (the "Special Purchase Right");
WHEREAS, in accordance with Investor's desire to exercise
its Special Purchase Right, the Company desires to issue and
sell to Subscriber shares of Company Common Stock in an
offering (the "Special Purchase") from the Company to
Subscriber; and
WHEREAS, the parties wish to modify the Special Purchase
Right set forth in Amendment No. 1 to Stockholders Agreement to
permit Investor to acquire additional shares of Company Common
Stock even though Investor would otherwise not have the right
to do so thereunder.
NOW, THEREFORE, in consideration of the foregoing and of
the mutual covenants and agreements hereinafter set forth, the
parties hereto hereby agree as follows:
1. SUBSCRIPTION; CLOSING; EXTENSION OF SPECIAL PURCHASE RIGHT
1.1 SUBSCRIPTION FOR COMPANY COMMON STOCK
Subject to the terms and conditions hereof,
Subscriber hereby subscribes (the "Subscription") to purchase
1,050,000 shares of Company Common Stock (the "Special Purchase
Shares"). Subscriber acknowledges receipt of an oral special
Purchase Notice (as defined in amendment No. 1 to Stockholders
Agreement) from the Company and hereby waives the requirement
that such notice have been in writing.
1.2 ACCEPTANCE OF SUBSCRIPTION
Subject to the terms and conditions hereof, the
Company hereby accepts the Subscription. The Company has
previously delivered an oral Special Purchase Notice to
Subscriber, which the Company hereby confirms in writing, and
the Company hereby confirms that the Company intends to use the
proceeds from the sale of the Special Purchase Shares to reduce
outstanding indebtedness of the Company.
1.3 PURCHASE PRICE
The per share purchase price (the "Per Share Purchase
Price") for the Special Purchase Shares shall be $22 1/8 per
share for an aggregate purchase price of $23,231,250 (the
"Purchase Price").
1.4 CLOSING
Subject to the terms and conditions hereof, the
closing of the Special Purchase (the "Closing") shall occur on
the date hereof. At the Closing, the Company will sell,
convey, assign, transfer and deliver, and Subscriber will
purchase and acquire (and the Advancing Party shall advance
sufficient funds for such purchase) from the Company, the
Special Purchase Shares, and Subscriber will pay to the Company
the Purchase Price by wire transfer of immediately-available
funds in U. S. dollars to the account or accounts specified by
the Company.
2
1.5 EXTENSION OF SPECIAL PURCHASE RIGHT
Anything in Amendment No. 1 to Stockholders Agreement
to the contrary notwithstanding, the Subsequent Number of
Shares referred to therein shall mean the lesser of (i) 700,000
Shares, or (ii) the maximum number of Shares of Company Common
Stock, as reasonably determined by Investor, the purchase of
which by Investor will not result in the Company ceasing to be
"domestically controlled" (as defined in Amendment No. 1 to
Stockholders Agreement), the applicable number of shares
referred to therein shall mean 1,750,000 (whether before or
after August 31, 1997), the First Anniversary referred to
therein shall mean October 31, 1997, and following the Closing
provided for in Section 1.4 hereof, the Special Purchase Right
shall consist of the right to purchase the Subsequent Number of
Shares. Except as amended hereby, the provisions of Amendment
No. 1 to Stockholders Agreement shall continue to remain in
full force and effect.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Subscriber
as follows:
2.1 DUE INCORPORATION, ETC.
(a) The Company is duly organized, validly existing
and in good standing under the Laws of the State of Florida,
with all requisite power and authority to own, lease, operate
and sell its assets and to carry on its business as it is now
being conducted. The Company is in good standing as a foreign
entity authorized to do business in each jurisdiction where it
engages in business, except to the extent such violation or
failure does not cause or is not reasonably expected to cause a
Material Adverse Effect.
(b) The Company owns all of the outstanding capital
stock of its subsidiaries listed on Exhibit 21 of the Company's
Form 10-K annual report filed with the SEC for the fiscal year
ended December 31, 1996, except that the Company owns 100% of
the outstanding preferred stock and 5% of the outstanding
common stock of Regency Realty Group II, Inc., which in turn
owns 100% of the preferred stock and 5% of the common stock of
Regency Realty Group, Inc. Except for its interests in its
subsidiaries and minority interests in Village Commons Shopping
Center, Ltd., Regency Ocean East Partnership, Ltd., RRC
Operating Partnership of Georgia, L.P. and Hyde Park Partners,
L.P., the Company does not hold any interest in any security
issued by any other person.
2.2 DUE AUTHORIZATION; CONSENTS; NO VIOLATIONS
(a) The Company has full power and authority to
enter into this Agreement and to consummate the transactions
contemplated hereby. The execution,
3
delivery and performance by the Company of this Agreement have
been duly and validly approved by the Company, and no other
proceeding on the part of the Company is necessary to authorize
this Agreement and the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by
the Company and, assuming due authorization, execution and
delivery of this Agreement by Investor, this Agreement
constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization, similar laws or court
decisions from time to time in effect that affect creditors'
rights generally and by legal and equitable limitations on the
availability of specific remedies.
(b) No consents, waivers, exemptions or approvals
of, or filings or registrations by the Company with, any
Government Authority or any other person not a party to this
Agreement are necessary in connection with the execution,
delivery and performance by the Company of this Agreement or
the consummation of the transactions contemplated hereby except
to the extent the failure to obtain the same does not cause or
is not expected to cause a Material Adverse Effect on the
Company or the transactions contemplated by this Agreement
except for the consents obtained pursuant to Section
7.1(d) of the Stock Purchase Agreement.
(c) Except to the extent same does not cause or is
not reasonably expected to cause a Material Adverse Effect, the
execution, delivery and performance by the Company of this
Agreement and the consummation of the transactions contemplated
hereby and thereby, do not and will not (i) violate any Order
applicable to or binding on the Company or its assets; (ii)
violate any statute, law, ordinance, rule, regulation or
judicial decision ("Law"); (iii) violate or conflict with,
result in a breach of, constitute a default (or an event which
with the passage of time or the giving of notice, or both,
would constitute a default) under, permit cancellation of,
accelerate the performance required by, or result in the
creation of any Lien upon any of the Company's assets under,
any contract or other arrangement of any kind or character to
which the Company is a party or by which the Company or any of
its assets are bound; (iv) permit the acceleration of the
maturity of any indebtedness of the Company, or any
indebtedness secured by any of the Company's assets; or (v)
violate or conflict with any provision of the Company's
Articles of Incorporation or Bylaws.
2.3 CAPITALIZATION
(a) The authorized capital stock of the Company
consists of (i) 150,000,000 shares of Common Stock, (ii)
10,000,000 shares of Special Common Stock, $0.01 par value, and
(iii) 10,000,000 shares of preferred stock, $0.01 par value.
As of August 27, 1997, there were 22,199,920 shares of Common
Stock issued and outstanding, and 2,500,000 shares of Class B
Non-voting Common Stock, par value $0.01 issued and
outstanding.
4
(b) No shares of the Company's stock are entitled to
preemptive rights. Except as disclosed in the Company's
reports filed with the Securities and Exchange Commission
("SEC") under the Securities Exchange Act of 1934 ("Regency
Exchange Act Reports"), in the Articles of Incorporation
relating to the Class B Non-voting Common Stock, or on Schedule
2.3(b), there are no outstanding options, warrants, scrip,
rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible
into, any shares of capital stock of the Company or any of its
subsidiaries, or contracts or other arrangements by which the
Company or any of its subsidiaries is or may become bound to
issue additional shares of capital stock of the Company or any
of its subsidiaries. The Company has furnished to Investor
true and correct copies of the Articles of Incorporation and
the Company's Bylaws, as in effect on the date hereof.
(c) Except as set forth on Schedule 2.3(c), the
Company has no obligation (contingent or otherwise) to
purchase, redeem or otherwise acquire any of its capital stock
or any interest therein or to pay any dividend or make any
other distribution in respect thereof.
(d) Except for the agreements listed on Schedule
2.3(d), the Company has no knowledge of any voting agreements,
voting trusts, stockholders' agreement, proxies or other
agreements or understandings that are currently in effect or
that are currently contemplated with respect to the voting of
any capital stock of the Company.
(e) All of the outstanding securities of the Company
were issued in compliance with all applicable federal and state
securities laws.
2.4 VALID ISSUANCE OF SHARES
The Special Purchase Shares which are being issued
hereunder, when issued and delivered in accordance with the
terms hereof for the consideration expressed herein, will be
duly and validly issued, fully paid and nonassessable and,
based upon the representations of Investor in this Agreement,
will be issued in compliance with all applicable federal and
state securities laws.
2.5 Regency Exchange Act Reports
(a) Since November 5, 1993, the Company has timely
filed all the Regency Exchange Act Reports. As of their
respective dates, (i) the Regency Exchange Act Reports complied
in all material respects with the requirements of the Exchange
Act and the rules and regulations of the SEC promulgated
thereunder applicable to the Regency Exchange Act Reports, and
(ii) no Regency Exchange Act Report contained any untrue
statement of material fact or omitted a material fact necessary
to make the statements contained therein, in light of the
circumstances under which they were made, not misleading.
5
(b) The financial statements of the Company included
in the Regency Exchange Act Reports comply as to form in all
material respects with applicable accounting requirements and
the published rules and regulations of the SEC with respect
thereto. Such financial statements have been prepared in
accordance with GAAP applied on a consistent basis during the
periods involved (except (i) as may be otherwise indicated in
such financial statements or the notes thereto or (ii) in the
case of unaudited interim statements, to the extent they may
not include footnotes or may be condensed or summary
statements) and on that basis present fairly in all material
respects the consolidated financial position and assets and
Liabilities of the entities included therein (including the
Company's subsidiaries) as going concerns, and the results of
the operations of such entities and changes in their financial
position for the periods covered thereby and as of the dates
thereof. Such financial statements are in accordance with the
books and records of the entities included therein (including
the Company's subsidiaries), do not reflect any transactions
which are not bona fide transactions and do not contain any
untrue statements of a material fact or omit to state any
material fact necessary to make the statements contained
therein, in light of the circumstances in which they were made,
not misleading. Such financial statements make full and
adequate disclosure of, and provision for all material
Liabilities of the entities included therein (including the
Company's subsidiaries) as of the dates thereof. Except as set
forth in the balance sheets included in the Regency Exchange
Act Reports, there are no Liabilities (including "off-balance
sheet" Liabilities), whether due or to become due, which have
had or are reasonably likely to have a Material Adverse Effect.
2.6 PERMITS
The Company holds all licenses, certificates,
permits, franchises, rights, variances, interim permits,
approvals, authorizations or consents, whether federal, state,
local or foreign, which are currently necessary for the lawful
operation of the Company's business, except for those the
absence of which would not cause and would not be reasonably
expected to cause a Material Adverse Effect on the Company.
2.7 NO ADVERSE CHANGE
Since June 30, 1997, there has not been (i) any
change in the Company which would cause or reasonably be
expected to result in a Material Adverse Effect on the Company,
(ii) any material loss, damage or destruction to any of the
Company's assets (whether or not covered by insurance) or any
other event or condition which has had or could have a Material
Adverse Effect on the Company, (iii) any contract or other
transaction entered into by the Company relating to, or
otherwise affecting in any way, its business or the operation
thereof, other than in the ordinary course of business, (iv)
any sale, lease or other transfer or disposition of any of the
Company's assets, or any cancellation of any debts or claim of
the Company, except in the ordinary course of business, and (v)
any changes in the accounting systems, policies or practices of
the
6
Company. Since June 30, 1997, the Company's business has been
conducted in all material respects only in the ordinary course
and consistent with past practices.
2.8 NO DEFAULTS OR VIOLATIONS
Except to the extent any default or non-compliance
does not cause or is not reasonably expected to cause a
Material Adverse Effect as to the Company: (a) the Company has
not materially breached any provision of, nor is it in material
default under the terms of, any lease, contract or commitment
to which it is a party or under which it has any rights or by
which it is bound or which relates to its business or its
assets and, to the Company's knowledge, no other party to any
such lease, contract, or other commitment has breached such
lease, contract or commitment or is in default thereunder (nor
has the Company waived any such default) in any material
respect, and no event has occurred and no condition or state of
facts exists which with the passage of time or the giving of
notice, or both, would constitute such a default or breach by
the Company, or to the Company's knowledge, by any such other
party, or give right to an automatic termination or the right
of discretionary termination thereof; (b) the Company is in
material compliance with, and no Liability or material
violation exists under, any Law or order applicable in any way
to the Company; and (c) no notice from any Government Authority
has been received by the Company claiming any violation of any
Law (including any building, zone or other ordinance) or order,
or requiring any work, construction or expenditure.
2.9 LITIGATION
Except for certain matters which, to the Company's
knowledge, do not have a Material Adverse Effect on the Company
or the transactions contemplated by this Agreement, there is no
litigation pending or, to the Company's knowledge, threatened
against any of the properties or businesses of the Company or
relating to its assets or the transactions contemplated by this
Agreement. Neither the Company nor any of its assets are
subject to any order which has had or could have had a Material
Adverse Effect on the Company.
2.10 TITLE TO PROPERTIES; LEASEHOLD INTERESTS
The Company has good and marketable title to each of
the properties and assets owned by it. Certain real and
personal property used by the Company in the conduct of its
business is held under lease, and, to the Company's knowledge,
there is no pending or threatened Claim by any lessor of any
such property to terminate any such lease. None of the
properties owned or leased by the Company is subject to any
Liens which could reasonably be expected to materially and
adversely affect the assets, properties, liabilities, business,
affairs, results of operations, condition (financial or
otherwise) or prospects of the Company. Each lease or
agreement to which the Company is a party under which it is the
lessee of any property, real or personal, is a
7
valid and subsisting agreement without any material default of
the Company thereunder and, to the best of the Company's
knowledge, without any material default thereunder of any other
party thereto. No event has occurred and is continuing which,
with due notice or lapse of time or both, would constitute a
default or event of default by the Company under any such lease
or agreement or, to the best of the Company's knowledge, by any
party thereto, except for such defaults that would not
individually or in the aggregate have a Material Adverse Effect
on the Company. The Company's possession of such property has
not been disturbed and, to the best of the Company's knowledge,
no claim has been asserted against it adverse to its rights in
such leasehold interests.
2.11 ENVIRONMENTAL MATTERS
For purposes of this Section 2.11, the term "Regency"
means the Company and its Affiliates, and the term "Regency
Property" means a property owned or leased by the Company or
its Affiliates and any property in which the Company or its
Affiliates has an interest. The parties acknowledge that
Regency does not possess any expertise with regard to Materials
of Environmental Concern and, accordingly, the following
representations and warranties are based exclusively on reports
prepared by environmental consultants to Regency.
(a) Except for those matters described in Schedule
2.11 with respect to Bolton Plaza, Regency is and each Regency
Property is not presently in violation of any applicable
Environmental Law;
(b) Regency has not stored or used any Materials of
Environmental Concern at any Regency Property;
(c) Regency has not received any notice, complaint,
warning letter or notice of violation from any Government
Authority or any other person that Regency is in violation of
any Environmental Law or environmental permit or that they are
responsible (or potentially responsible) for the assessment or
remediation of any release of any Material of Environmental
Concern at, on or beneath any Regency Property;
(d) Regency is not the subject of any actual or
threatened federal, state, local or private litigation
involving a claim of liability or a demand for damages, arising
out of violation of any Environmental Law or from the release
or threatened release of any Material of Environmental Concern;
(e) Except for those matters described in Schedule
2.11 with respect to Bolton Plaza, Regency has timely filed all
reports required by any applicable Environmental Law and has
generated and maintained all data, documentation, and records
required under any Environmental Law;
8
(f) Except for those matters described in Schedule
2.11, which, to Regency's knowledge, do not have a Material
Adverse Effect on Regency, Regency is not aware of any release
or threatened release of a Material of Environmental Concern,
the presence of any current or former drycleaning facility, the
presence of any current or former storage tanks, the presence
of any asbestos containing material, or the presence of any
condition or circumstance which could subject the owner or
operator of any Regency Property to liability or claims under
the Environmental Laws or any private cause of action arising
out of an environmental condition;
(g) No Regency Property is subject to, and Regency
has no knowledge of any imminent restriction on the ownership,
occupancy, use, or transferability of any Regency Property; or
(h) To Regency's knowledge, there are no conditions
or circumstances at any Regency Property which pose a risk to
the environment or the health or safety of any Person.
2.12 TAXES
The Company has filed all federal, state, local and
other Tax returns and reports (except for foreign returns and
reports the failure to file which has not and is not reasonably
expected to cause a Material Adverse Effect), and any other
material returns and reports with any Government Authority,
required to be filed by it. The Company has paid or caused to
be paid all Taxes that are due and payable, except those which
are being contested by it in good faith by appropriate
proceedings and in respect of which adequate reserves are being
maintained on its books in accordance with GAAP consistently
applied. The Company does not have any material Liabilities
for Taxes other than those incurred in the ordinary course of
business and in respect of which adequate reserves are being
maintained by it in accordance with GAAP consistently applied.
Federal and state income Tax returns for the Company have not
been audited by the IRS or any state authority. No deficiency
assessment with respect to or proposed adjustment of the
Company's federal, state, local or other Tax returns is pending
or, to the best of the Company's knowledge, threatened. There
is no Tax Lien, whether imposed by any federal, state, local or
other tax authority outstanding against the assets, properties
or business of the Company. There are no applicable Taxes,
fees or other governmental charges payable by the Company in
connection with the execution and delivery of this Agreement.
2.13 EMPLOYEES: ERISA
The Company has good relationships with its employees
and has not had and does not expect any substantial labor
problems. The Company does not have any knowledge as to any
intentions of any key employee or any group of employees to
leave the employ of the Company. Other than as disclosed in
the Regency Exchange Act
9
Reports and materials provided to Investor, the Company has not
established, sponsored, maintained, made any contributions to
or been obligated by law to establish, maintain, sponsor or
make any contributions to any "employee pension benefit plan"
or "employee welfare benefit plan" (as such terms are defined
in ERISA), including, without limitation, any " multi-employer
plan." The Company has complied in all material respects with
all applicable Laws relating to the employment of labor,
including provisions relating to wages, hours, equal
opportunity, collective bargaining and the payment of Social
Security and other Taxes, and with ERISA.
2.14 ACCURACY OF STATEMENTS
To the Company's knowledge, neither this Agreement
nor any document, instrument, schedule, exhibit, statement,
list, certificate or other information furnished or to be
furnished by or on behalf of the Company to Investor in
connection with this Agreement or any of the transactions
contemplated hereby contains or will contain any untrue
statement of a material fact or omits or will omit to state a
material fact necessary to make the statements contained herein
or therein, in light of the circumstances in which they are
made, not misleading.
2.15 TAX MATTERS; REIT AND PARTNERSHIP STATUS
(a) The Company (i) intends in its federal income
tax return for the tax year ended on December 31, 1996, and in
its federal income tax return for the tax year that will end on
December 31, 1997, to elect to be taxed as a REIT within the
meaning of Section 856 of the Code, and has complied (or will
comply) with all applicable provisions of the Code relating to
a REIT for 1997, (ii) has operated, and intends to continue to
operate, in such a manner as to qualify as a REIT for 1997,
(iii) has not taken or omitted to take any action which would
reasonably be expected to result in a challenge to its status
as a REIT, and, to the Company's knowledge, no such challenge
is pending or threatened, and (iv) to the Company's knowledge,
and assuming the accuracy of Subscriber's representation in
Section 3.7, 3.8, will not be rendered unable to qualify as a
REIT for federal income tax purposes as a consequence of the
transactions contemplated hereby.
(b) The Company was eligible to and did validly
elect to be taxed as a REIT for federal income tax purposes for
calendar years 1993, 1994, and 1995. Each Partnership and each
subsidiary of the Company organized as a partnership (and any
other subsidiary of the Company that files tax returns as a
partnership for federal income tax purposes) was and continues
to be classified as a partnership for federal income tax
purposes.
(c) For purposes of this Section 2.15, no
representation set forth in Section 2.15 shall be deemed to be
untrue unless such untruths would, individually or in the
aggregate, be reasonably expected to result in a Material
Adverse Effect.
10
2.16 COMPLIANCE WITH ORGANIZATION DOCUMENTS
Neither the Company nor any of its Subsidiaries is in
default under or in violation of any provision of its charter,
bylaws or partnership agreement (or equivalent organizational
documents), except for such defaults or violations which would
not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect.
2.17 FLORIDA TAKEOVER LAW
The terms of Sections 607.0901 and 607.0902 of the
Florida Business Corporation Act will not apply to Subscriber,
the Subscription or any other transaction contemplated hereby.
2.18 BROKERS OR FINDERS
No agent, broker, investment banker or other firm or
person, including any of the foregoing that is an Affiliate of
the Company, is or will be entitled to any broker's or finder's
fee or any other commission or similar fee from the Company in
connection with this Agreement or any of the transactions
contemplated hereby for which Subscriber will be responsible.
2.19 SHAREHOLDER APPROVAL
The issuance of Company Common Stock pursuant to this
Agreement has been approved by the requisite vote of the
Company's Shareholders.
2.20 AMENDED COMPANY CHARTER; MODIFICATION OF OWNERSHIP
LIMIT
The amendment to the Company Charter in the form
attached as Exhibit E to the Stock Purchase Agreement has been
approved by the requisite vote of holders of Company Common
Stock, all as required by and in accordance with the Company
Charter, and duly filed with the Secretary of State of Florida
and is full force and effect.
2.21 CONSENTS
Company has obtained the consents required by Section
7.1(d) of the Stock Purchase Agreement (other than that of
Fortis Benefits Insurance Co., which was waived by the
Parties).
2.22 HSR ACT
No action has been instituted by the United States
Department of Justice or the United States Federal Trade
Commission challenging the consummation of the
11
transactions contemplated by the Stock Purchase Agreement or
the transactions contemplated hereby, and no filing under the
HSR Act is required with respect to the transactions
contemplated thereby or hereby.
2.23 RELATED TENANT LIMIT WAIVER
The Board of Directors of the Company has granted a
waiver of the Related Tenant Limit (as such term is defined in
the Company Charter) to Investor.
2.24 NO INJUNCTION
There is no order, decree or injunction of a court or
agency of competent jurisdiction which enjoins or prohibits
consummation of the transactions contemplated hereby and there
are no pending Actions which would reasonably be expected to
have a material adverse effect on the ability of the Company to
consummate the transactions contemplated hereby or to issue the
Special Purchase Shares.
2.25 DOMESTICALLY-CONTROLLED REIT
To the best of the Company's knowledge, the Company
is, and after giving effect to the Closing will be, a
"domestically-controlled" REIT within the meaning of Code
Section 897(h)(4)(B).
3. REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER AND THE
ADVANCING PARTY
Subscriber and the Advancing Party hereby jointly and
severally represent and warrant to the Company as follows:
3.1 ORGANIZATION AND STANDING
Each of Subscriber and the Advancing Party is a
corporation duly incorporated, validly existing and in good
standing under the laws of Luxembourg. Subscriber has all
requisite corporate power and authority to own, operate, lease
and encumber its properties and carry on its business as now
conducted, and to enter into this Agreement and to perform its
obligations hereunder.
3.2 DUE AUTHORIZATION
The execution, delivery and performance of this
Agreement have been duly and validly authorized by all
necessary corporate action on the part of Subscriber and the
Advancing Party. This Agreement has been duly executed and
delivered by each of Subscriber and the Advancing Party for
itself and constitutes the valid and legally binding
obligations of Subscriber and the Advancing party, enforceable
against Subscriber or the
12
Advancing Party, as the case may be, in accordance with its
terms, subject to applicable bankruptcy, insolvency, moratorium
or other similar laws relating to creditors' rights or general
principles of equity.
3.3 CONFLICTING AGREEMENTS AND OTHER MATTERS
Neither the execution and delivery of this Agreement
nor the performance by Subscriber or the Advancing Party, as
the case may be, of its obligations hereunder will conflict
with, result in a breach of the terms, conditions or provisions
of, constitute a default under, result in the creation of any
mortgage, security interest, encumbrance, lien or charge of any
kind upon any of the properties or assets of Subscriber or the
Advancing Party, as the case may be, pursuant to, or require
any consent, approval or other action by or any notice to or
filing with any Government Authority pursuant to, the
organization documents or agreements of Subscriber or the
Advancing Party, as the case may be, or any agreement,
instrument, order, judgment, decree, statute, law, rule or
regulation by which Subscriber or the Advancing Party, as the
case may be, is bound, except for filings after the Closing
under Section 13(d) of the Exchange Act.
3.4 SOURCE OF FUNDS
At the Closing, the Advancing Party shall have
available and shall advance to Subscriber all of the funds
necessary to satisfy Subscriber's obligations hereunder and to
pay any related fees and expenses in connection with the
foregoing.
3.5 BROKERS OR FINDERS
No agent, broker, investment banker or other firm or
person, including any of the foregoing that is an Affiliate of
Subscriber or the Advancing Party, is or will be entitled to
any broker's or finder's fee or any other commission or similar
fee from Subscriber or the Advancing Party in connection with
this Agreement or the transactions contemplated hereby for
which the Company will be responsible.
3.6 REIT QUALIFICATION MATTERS
To Subscriber's knowledge, no person which would be
treated as an "individual" for purposes of Section 542(a)(2) of
the Code (as modified by Section 856(h) of the Code) owns or
would be considered to own (taking into account the ownership
attribution rules under Section 544 of the Code, as modified by
Section 856(h) of the Code) in excess of 9.8% of the value of
the outstanding equity interest in Subscriber or the Advancing
Party.
3.7 INVESTMENT COMPANY MATTERS
13
Neither the Advancing Party nor Subscriber is, and
after giving effect to the purchase of the Special Purchase
Shares, neither will be, an "investment company" or an entity
"controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended.
3.8 INVESTMENT REPRESENTATIONS
Investor is acquiring the Special Purchase Shares for
investment purposes and not with a view to the distribution
thereof. Investor acknowledges and agrees that the Special
Purchase Shares may only be sold or otherwise disposed of in
one or more transactions registered under the Security Act and,
where applicable, relevant state securities laws or as to which
an exemption from the registration requirements of the
Securities Act and, where applicable, such state securities
laws is applicable, and Investor agrees that the Certificates
representing such Company Common Stock will bear a legend to
that effect.
4. SURVIVAL; INDEMNIFICATION
4.1 SURVIVAL
All representations, warranties, covenants and
agreements of the parties contained herein, including indemnity
or indemnification agreements contained herein, shall survive
the Closing until the first anniversary of the Closing. No
Action or proceeding may be brought with respect to any of the
representations, warranties, covenants or agreements unless
written notice thereof, setting forth in reasonable details the
claimed misrepresentations or breach of warranty or breach of
covenant or agreement, shall have been delivered to the party
alleged to have breached such representation or warranty or
such covenant or agreement prior to the first anniversary of
the Closing. Those covenants or agreements that contemplate or
may involve actions to be taken or obligations in effect after
the Closing shall survive in accordance with their terms.
4.2 INDEMNIFICATION BY SUBSCRIBER OR THE COMPANY
(a) Subject to Section 4.1, from and after the
Closing, Subscriber shall indemnify and hold harmless the
Company, its successors and assigns, from and against any and
all Loss and Expenses suffered, directly or indirectly, by the
Company by reason of, or arising out of (i) any breach as of
the date made or deemed made or required to be true of any
representations or warranty made by Subscriber in or pursuant
to this Agreement, or (ii) any failure by Subscriber to perform
or fulfill any of its covenants or agreements set forth herein.
Notwithstanding any other provision of this Agreement to
14
the contrary, in no event shall Loss and Expenses include a
party's incidental or consequential damages.
(b) Subject to Section 4.1, from and after the
Closing, the Company shall indemnify and hold harmless
Subscriber, its successors and assigns, from and against any
and all Loss and Expenses, suffered, directly or indirectly, by
Subscriber by reason of, or arising out of, any breach as of
the date made or deemed made or required to be true of any
representations or warranty made by the Company in or pursuant
to this Agreement and any statements made in any certificate
delivered pursuant to this Agreement, or (ii) any failure by
the Company to perform or fulfill any of its covenants or
agreements set forth herein. Notwithstanding any other
provision of this Agreement to the contrary, in no event shall
Loss and Expenses include a party's incidental or consequential
damages.
(c) Notwithstanding the foregoing, (i) neither
Subscriber nor the Company shall be responsible for any Loss
and Expenses as provided by paragraphs (a) and (b),
respectively, of this Section 4.2, until the cumulative
aggregate amount of such Loss and Expenses suffered by
Subscriber or the Company, as the case may be, exceeds
$500,000, in which case Subscriber or the Company, as the case
may be, shall then be liable for all such Loss and Expenses,
and (ii) the cumulative aggregate indemnity obligations of each
of Subscriber and the Company under this Section 4.2 shall in
no event exceed the Purchase Price. Except with respect to
third-party claims being defended in good faith or claims for
indemnification with respect to which there exists a good faith
dispute, the indemnifying party shall satisfy its obligations
hereunder within 30 days of receipt of a notice of claim under
this Section 4.
4.3 THIRD-PARTY CLAIMS
If a claim by a third party is made against
Subscriber or the Advancing Party or the Company (each, an
"Indemnified Party") and if such Indemnified Party intends to
seek indemnity with respect thereto under this Section 4, such
Indemnified Party shall promptly notify the indemnifying party
in writing of such claims setting forth such claims in
reasonable detail. The indemnifying party shall have 20 days
after receipt of such notice to undertake, through counsel of
its own choosing and at its own expense, the settlement or
defense thereof, and the Indemnified Party shall cooperate with
it in connection therewith; provided, however, that the
Indemnified Party may participate in such settlement or defense
through counsel chosen by such Indemnified Party, provided that
the fees and expenses of such counsel shall be borne by such
Indemnified Party. The Indemnified Party shall not pay or
settle any claim which the indemnifying party is contesting.
Notwithstanding the foregoing, the Indemnified Party shall have
the right to pay or settle any such claim, provided that in
such event it shall waive any right to indemnity therefor by
the indemnifying party. If the indemnifying party does not
notify the Indemnified Party within 20 days after the receipt
of the Indemnified Party's notice of a claim of indemnity
hereunder that it elects to undertake the defense thereof, the
15
Indemnified Party shall have the right to contest, settle or
compromise the claim but shall not thereby waive any right to
indemnity therefor pursuant to this Agreement.
5. MISCELLANEOUS
5.1 COUNTERPARTS
This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement, and shall be effective when one or more counterparts
have been signed by each party hereto and delivered to the
other party. Copies of executed counterparts transmitted by
telecopy, telefax or other electronic transmission service
shall be considered original executed counterparts for purposes
of this Section, provided receipt of copies of such
counterparts is confirmed.
5.2 GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA WITHOUT
REFERENCE TO THE CHOICE OF LAW PRINCIPLES THEREOF.
5.3 ENTIRE AGREEMENT
This Agreement contains the entire agreement between
the parties hereto with respect to the subject matter hereof
and there are no agreements, understandings, representations or
warranties between the parties other than those set forth or
referred to herein. This Agreement is not intended to confer
upon any person not a party hereto (and their successors and
assigns) any rights or remedies hereunder.
5.4 NOTICES
All notices and other communications hereunder shall
be sufficiently given for all purposes hereunder if in writing
and delivered personally, sent by documented overnight delivery
service or, to the extent receipt is confirmed, telecopy,
telefax or other electronic transmission service to the
appropriate address or numbers as set forth below. Notices to
the Company shall be addressed to:
Regency Realty Corporation
121 W. Forsyth Street, Suite 200
Jacksonville, Florida 32202
Attention: Martin E. Stein, Jr.
Telecopy Number: (904) 634-3428
16
with a copy (which shall not constitute notice) to:
Foley & Lardner
Greenleaf Building
200 Laura Street
Jacksonville, Florida 32202
Attention: Charles E. Commander, III, Esq.
Telecopy Number: (904) 359-8700
Notices to Subscriber or the Advancing Party shall be
addressed to:
Security Capital Holdings S.A.
69, route d'Esch
L-2953 Luxembourg
Attention: David A. Roth, Vice President
Telecopy Number: (352) 4590-3331
with a copy (which shall not constitute notice) to:
Wachtell, Lipton, Rosen & Katz
51 W. 52nd Street
New York, New York 10018
Attention: Adam O. Emmerich, Esq.
Telecopy Number: (212) 403-2000
5.5 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and insure to
the benefit of the parties hereto and their respective
successors. Neither Subscriber nor the Advancing Party shall
be permitted to assign any of its rights hereunder to any third
party; provided, however, that Subscriber and the Advancing
Party may assign all (but not less than all) of their rights
hereunder to any other Investor so long as such other Investor
agrees in writing, in a form reasonably acceptable to the
Company, to be bound by all the terms and conditions of this
Agreement.
5.6 HEADINGS
The Section and other headings contained in this
Agreement are inserted for convenience of reference only and
shall not affect the meaning or interpretation of this
Agreement.
17
5.7 AMENDMENTS AND WAIVERS
This Agreement may not be modified or amended except
by an instrument or instruments in writing signed by the party
against whom enforcement of any such modification or amendment
is sought. Any party hereto may, only by an instrument in
writing, waive compliance by the other parties hereto with any
term or provision hereof on the part of such other party hereto
to be performed or complied with. The waiver by any party
hereto of a breach of any term or provision hereof shall not be
construed as a waiver of any subsequent breach.
5.8 EXPENSES
Except as set forth in this Agreement, whether or not
the Closing is consummated, all legal and other costs and
expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party
incurring such costs and expenses.
5.9 SEVERABILITY
Any provision hereof which is invalid or
unenforceable shall be ineffective to the extent of such
invalidity or unenforceability, without affecting in any way
the remaining provisions hereof.
5.10 FURTHER ASSURANCES
The Company, Subscriber and the Advancing Party agree
that, from time to time, whether before, at or after the
Closing, each of them will execute and deliver such further
instruments of conveyance and transfer and take such other
action as may be necessary to carry out the purposes and
intents hereof.
5.11 JOINT AND SEVERAL LIABILITY; GUARANTY
The obligations and liability of Subscriber and the
Advancing Party under or in connection with this Agreement are
joint and several. The Advancing Party hereby unconditionally
and irrevocably guarantees and agrees to be responsible for the
payment and performance of all of Subscriber's obligations
hereunder.
[THE REMAINDER OF THIS PAGE IS BLANK INTENTIONALLY.]
18
IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement or have caused this Agreement to be
duly executed on their behalf, as of the day and year first
above written.
REGENCY REALTY CORPORATION
By: /s/ Bruce M. Johnson
___________________________
Name: Bruce M. Johnson
Title: Managing Director
SECURITY CAPITAL HOLDINGS S.A.
By: ___________________________
Name: David A. Roth
Title: Vice President
SECURITY CAPITAL U.S. REALTY
By: ___________________________
Name: David A. Roth
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have duly
executed this Agreement or have caused this Agreement to be
duly executed on their behalf, as of the day and year first
above written.
REGENCY REALTY CORPORATION
By: ___________________________
Name: Bruce M. Johnson
Title: Managing Director
SECURITY CAPITAL HOLDINGS S.A.
By: /s/ David A. Roth
___________________________
Name: David A. Roth
Title: Vice President
SECURITY CAPITAL U.S. REALTY
By: /s/ David A. Roth
___________________________
Name: David A. Roth
Title: Vice President