Regency Centers, L.P.
Notes
Guaranteed by Regency Centers Corporation
Underwriting Agreement
----------------------
December 5, 2001
First Union Securities, Inc.
301 South College Street, TW-8
Charlotte, North Carolina 28288
Ladies and Gentlemen:
From time to time Regency Centers, L.P., a Delaware limited partnership
(the "Partnership"), proposes to enter into one or more Pricing Agreements (each
a "Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities"). The Securities will be unconditionally
guaranteed by the guarantees (the "Guarantees") of Regency Centers Corporation,
a Florida corporation (the "Guarantor").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Partnership or the Guarantor to
sell any of the Securities or the Guarantees or as an obligation of any of the
Underwriters to purchase the Securities or the Guarantees. The obligation of the
Partnership to issue and sell any of the Securities and the obligation of any of
the Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified therein.
Each Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the
Underwriters of such Designated Securities, the names of the Representatives of
such Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Partnership and the Guarantor jointly and severally represent
and warrant to, and agree with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-58966)
(the "Initial Registration Statement") in respect of the Securities and
the Guarantees has been filed with the Securities and Exchange
Commission (the "Commission"); the Initial Registration Statement and
any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding
exhibits to the Initial Registration Statement, but including all
documents incorporated by reference in the prospectus contained
therein, to the Representatives for each of the other Underwriters,
have been declared effective by the Commission in such form; other than
a registration statement, if any, increasing the size of the offering
(a "Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement or document incorporated by reference therein
has heretofore been filed or transmitted for filing with the Commission
(other than prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act, each in the form
heretofore delivered to the Representatives); and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with
the Commission pursuant to Rule 424(a) under the Act, is hereinafter
called a "Preliminary Prospectus"; the various parts of the Initial
Registration Statement, any post-effective amendment thereto and the
Rule 462(b) Registration Statement, if any, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in the Initial Registration Statement at the time such part
of the Initial Registration Statement became effective but excluding
Form T-1, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective,
are hereinafter collectively called the "Registration Statement"; the
prospectus relating to the Securities and the Guarantees, in the form
in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
the applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
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shall be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Initial Registration Statement shall be deemed to refer to and include
any annual or special report of the Partnership or the Guarantor filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed
to refer to the Prospectus as amended or supplemented in relation to
the applicable Designated Securities in the form in which it is filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) 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
information furnished in writing to the Partnership and the Guarantor
by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Partnership and
the Guarantor by an Underwriter of Designated Securities through the
3
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(d) Neither the Guarantor 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; 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 of the Guarantor or any of its
subsidiaries (including the Partnership) (other than issuances of
capital stock in connection with employee benefit plans, the exercise
of options, the exchange of Partnership units and the payment of
earn-outs pursuant to contractual commitments) or in the partners'
capital of the Partnership or any of its subsidiaries, any change in
mortgage loans payable or long-term debt of the Guarantor or any of its
subsidiaries (including the Partnership) in excess of $20,000,000 or in
the mortgage loans payable or long-term debt of the Partnership or any
of its subsidiaries or any material adverse change in excess of
$20,000,000, or any development involving a prospective material
adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity, partners' capital or results
of operations of the Guarantor and its subsidiaries (including the
Partnership), otherwise than as set forth or contemplated in the
Prospectus;
(e) The Guarantor 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
Guarantor and its subsidiaries (including the Partnership); and any
real property and buildings held under lease by the Guarantor 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 Guarantor and its subsidiaries
(including the Partnership);
(f) 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, 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; the
Guarantor 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, 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
4
no material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; and each subsidiary of the
Guarantor 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) The Partnership has an authorized capitalization as set
forth in the Prospectus, and all of the issued partnership interests of
the Partnership have been duly and validly authorized and issued and
are fully paid and non-assessable; all of the issued shares of capital
stock of the Guarantor have been duly and validly authorized and issued
and are fully paid and non-assessable; 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 Guarantor have been duly and
validly authorized and issued, are fully paid and non-assessable and
(except as set forth on Exhibit A and directors' qualifying shares) are
owned directly or indirectly by the Guarantor, free and clear of all
liens, encumbrances, equities or claims;
(h) The Securities have been duly authorized and, when
Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities and authenticated pursuant to the Indenture (as hereinafter
defined), such Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Partnership enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
fraudulent transfer, equitable subordination, fair dealing, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; entitled
to the benefits provided by the indenture dated as of December 5, 2001
(the "Indenture") among the Partnership, the Guarantor and First Union
National Bank, as Trustee (the "Trustee"), under which they are to be
issued, which is substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, at the Time of Delivery
for such Designated Securities (as defined in Section 4 hereof), the
Indenture will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement,
to bankruptcy, fraudulent transfer, equitable subordination, fair
dealing, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; the Guarantees have been duly authorized and, when
the Securities are issued and delivered pursuant to this Agreement, the
Guarantees will have been duly executed, issued and delivered and will
constitute a valid and legally binding obligation of the Guarantor,
enforceable in accordance with their terms, subject, as to enforcement,
to bankruptcy, fraudulent transfer, equitable subordination, fair
dealing, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the Indenture conforms, and the Designated
Securities and the Guarantees will conform, to the descriptions thereof
in the Prospectus as amended or supplemented with respect to such
Designated Securities;
(i) None of the transactions contemplated by this Agreement or
any Pricing Agreement (including, without limitation, the use of the
proceeds from the sale of the Designated Securities) will violate or
result in a violation of Section 7 of the Exchange Act, or any
regulation promulgated thereunder, including, without limitation,
Regulations
5
G, T, U, and X of the Board of Governors of the Federal Reserve System;
(j) Prior to the date hereof, neither the Guarantor nor any of
its affiliates (including the Partnership) has taken any action which
is designed to or which has constituted or which might have been
expected to cause or result in stabilization or manipulation of the
price of any security of the Partnership or the Guarantor in connection
with the offering of the Designated Securities and the Guarantees;
(k) The issue and sale of the Securities, the issue of the
Guarantees and the compliance by the Partnership and the Guarantor with
all of the provisions of the Securities, the Guarantees, the Indenture,
this Agreement and any Pricing Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Guarantor
or any of its subsidiaries (including the Partnership) is a party or by
which the Guarantor or any of its subsidiaries (including the
Partnership) is bound or to which any of the property or assets of the
Guarantor or any of its subsidiaries (including the Subsidiaries) is
subject, nor will such action result in any violation of the provisions
of the Articles of Incorporation or By-laws of the Guarantor, the
Certificate of Limited Partnership or partnership agreement of the
Partnership or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Guarantor or any of its subsidiaries (including the Partnership) or any
of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities,
the issue of the Guarantees or the consummation by the Partnership and
the Guarantor of the transactions contemplated by this Agreement or any
Pricing Agreement or the Indenture, except such as have been, or will
have been prior to the Time of Delivery, obtained under the Act and the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(l) Neither the Guarantor 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;
(m) The statements set forth in the Prospectus under the
caption "Description of the Notes", insofar as they purport to
constitute a summary of the terms of the Securities and the Guarantees,
and under the captions "Federal Income Tax Considerations" and "Plan of
Distribution", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate and complete
in all material respects;
(n) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Guarantor or any
of its subsidiaries
6
(including the Partnership) is a party or of which any property of the
Guarantor or any of its subsidiaries (including the Partnership) is the
subject which, if determined adversely to the Guarantor 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 Guarantor and its subsidiaries (including the
Partnership); and, to the best of the Partnership's knowledge and the
Guarantor's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(o) The Guarantor has qualified to be taxed as a real estate
investment trust pursuant to Sec-tions 856 through 860 of the Internal
Revenue Code of 1986, as amended (the "Code"), for each of the fiscal
years from its inception through the most recently completed fiscal
year and the Guarantor's present and contemplated organization,
ownership, method of operation, assets and income are such that the
Guarantor is in a position under present law to so qualify for the
current fiscal year and in the future;
(p) Neither the Guarantor nor the Partnership has knowledge of
(a) the presence of any hazardous substances, hazardous materials,
toxic substances or waste materials (collec-tively, "Hazardous
Materials") on any of the properties owned by it in violation of law or
in excess of regulatory action levels or (b) any unlaw-ful 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 materi-ally adversely affect the
condition, financial or otherwise, or the earnings, busi-ness affairs
or business prospects of the Guarantor or the Partnership; and in
connection with the construction on or operation and use of the
properties owned by the Guarantor and the Partnership, neither has any
knowledge of any material failure to comply with all applicable local,
state and federal environmental laws, regula-tions, agency
requirements, ordinances and administrative and judicial orders;
(q) Neither the Partnership nor the Guarantor is, and after
giving effect to the offering and sale of the Securities and the
issuance of the Guarantees, will be an "investment company", or an
entity "controlled" by an "investment company", as such terms are
defined in the United States Investment Company Act of 1940, as amended
(the "Investment Company Act"); and
(r) KPMG LLP, who have certified certain financial statements
of the Partnership and its subsidiaries and the Guarantor and its
subsidiaries, are independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities and the Guarantees thereof, the several Underwriters
propose to offer such Designated Securities for sale upon the terms and
conditions set forth in the Prospectus as amended or supplemented.
7
4. Designated Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Partnership, shall be delivered by or on behalf of the Partnership to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Partnership to the
Representatives at least forty-eight hours in advance or at such other place and
time and date as the Representatives and the Partnership may agree upon in
writing, such time and date being herein called the "Time of Delivery" for such
Securities.
5. The Partnership and the Guarantor jointly and severally agree with
each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities and the Guarantees in
a form approved by the Representatives and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the Commission' s
close of business on the second business day following the execution
and delivery of the Pricing Agreement relating to the applicable
Designated Securities or, if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or any supplement
to the Registration Statement or Prospectus as amended or supplemented
after the date of the Pricing Agreement relating to such Securities and
prior to the Time of Delivery for such Securities which shall be
disapproved by the Representatives for such Securities promptly after
reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after such Time of Delivery and
furnish the Representatives with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to
be filed by the Partnership or the Guarantor with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for
so long as the delivery of a prospectus is required in connection with
the offering or sale of such Securities, and during such same period to
advise the Representatives, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus
or for additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the use
of any prospectus relating to the Securities or suspending any such
qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities and
the Guarantees for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with
such laws so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to complete the
distribution of such Securities and the Guarantees; provided, that in
connection therewith neither the
8
Partnership nor the Guarantor shall be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters in New York City with copies of
the Prospectus as amended or supplemented in such quantities as the
Representatives may reasonably request and, if the delivery of a
prospectus is required at any time in connection with the offering or
sale of the Securities and issuance of the Guarantees and if at such
time any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Act, the Exchange Act or the Trust
Indenture Act, to notify the Representatives and upon their request to
file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of
the Partnership, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the later of (i) the termination of trading restrictions for
such Designated Securities, as notified to the Partnership by the
Representatives, and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, any debt securities of the
Partnership or the Guarantor which mature more than one year after such
Time of Delivery and which are substantially similar to such Designated
Securities, without the prior written consent of the Representatives;
(f) Not to be or become, at any time prior to the expiration
of three years after the Time of Delivery, an open-end investment
company, unit investment trust, closed-end investment company or
face-amount certificate company that is or is required to be registered
under Section 8 of the Investment Company Act;
(g) During a period of five years from the date of the
Prospectus, to furnish to the Representatives copies of all reports or
other communications (financial or other) furnished to partners of the
Partnership or stockholders of the Guarantor, and to deliver to the
Representatives (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any securities exchange on which the Securities or any
class of securities of the Partnership or the
9
Guarantor is listed; and (ii) such additional information concerning
the business and financial condition of the Partnership or the
Guarantor as the Representatives may from time to time reasonably
request (such financial statements to be on a consolidated basis to the
extent the accounts of the Partnership and its subsidiaries are
consolidated in reports furnished to its partners generally or to the
Commission or to the extent the accounts of the Guarantor and its
subsidiaries are consolidated in reports furnished to its stockholders
generally or to the Commission);
(h) To use the net proceeds received by it from the sale of
the Securities pursuant to this Agreement and any Pricing Agreement in
the manner specified in the Prospectus under the caption "Use of
Proceeds"; and
(i) If the Partnership and the Guarantor elect to rely upon
Rule 462(b), the Partnership and the Guarantor shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Partnership and the Guarantor shall at the time of
filing either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the Act.
6. The Partnership and the Guarantor jointly and severally covenant and
agree with the several Underwriters that the Partnership or the Guarantor will
pay or cause to be paid the following: (i) the fees, disbursements and expenses
of the Partnership's and the Guarantor's counsel and accountants in connection
with the registration of the Securities and the Guarantees under the Act and all
other expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and any
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, the
Indenture, the Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities and the Guarantees;
(iii) all expenses in connection with the qualification of the Securities and
the Guarantees for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky and legal investment surveys; (iv) any fees charged by
securities rating services for rating the Securities; (v) any filing fees
incident to, and the reasonable fees and disbursements of counsel for the
Underwriters in connection with, any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of the Securities and the
Guarantees; (vi) the cost of preparing the Securities and the Guarantees; (vii)
the fees and expenses of any Trustee and any agent of any Trustee and the
reasonable fees and disbursements of counsel for any Trustee in connection with
the Indenture, the Securities and the Guarantees; and (viii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 8 and 11 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.
10
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Partnership and the
Guarantor in or incorporated by reference in the Pricing Agreement relating to
such Designated Securities are, at and as of the Time of Delivery for such
Designated Securities, true and correct, the condition that the Partnership and
the Guarantor shall have performed all of its obligations hereunder theretofore
to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; if the Partnership has
elected to rely upon Rule 462(b), the Rule 462(b) Registration
Statement shall have become effective by 10:00 P.M., Washington, D.C.
time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Sullivan & Cromwell, counsel for the Underwriters, shall
have furnished to the Representatives such written opinion or opinions
(a draft of each such opinion is attached as Annex II(a) hereto), dated
the Time of Delivery for such Designated Securities, with respect to
the matters covered in paragraphs (i) (with respect to Delaware
entities), (vi), (vii) (with respect to the Designated Securities) and
(viii) of subsection (c) below as well as such other related matters as
the Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Foley & Lardner, counsel for the Partnership and the
Guarantor, shall have furnished to the Representatives their written
opinion (a draft of such opinion is attached as Annex II(b) hereto),
dated the Time of Delivery for such Designated Securities, in form and
substance satisfactory to the Representatives, to the effect that:
(i) 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; the Guarantor 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;
(ii) The Partnership has an authorized capitalization
as set forth in the Prospectus as amended or supplemented, and
all of the issued partnership interests of the Partnership
have been duly and validly authorized and issued and are fully
paid and non-assessable; and all of the issued shares of
capital stock of the Guarantor have been duly and validly
authorized and issued and are fully paid and non-assessable;
11
(iii) Each of the Partnership and the Guarantor has
been duly qualified as a foreign corporation or other
organization 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 (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Partnership or the
Guarantor, provided that such counsel shall state that they
believe that both you and they are justified in relying upon
such opinions and certificates);
(iv) Each other subsidiary of the Guarantor has been
duly incorporated and is validly existing as a corporation or
other organization in good standing under the laws of its
jurisdiction of incorporation or organization; and all of the
issued shares of capital stock or partnership interests of
each such subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable, and (except for
directors' qualifying shares or as set forth on Exhibit A
hereto) are owned directly or indirectly by the Guarantor, to
the best knowledge of such counsel, free and clear of all
liens, encumbrances, equities or claims (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Partnership or the
Guarantor or its subsidiaries, provided that such counsel
shall state that they believe that both you and they are
justified in relying upon such opinions and certificates);
(v) To the best of such counsel's knowledge and other
than as set forth in the Prospectus as amended or
supplemented, there are no legal or governmental proceedings
pending to which the Guarantor or any of its subsidiaries
(including the Partnership) is a party or of which any
property of the Guarantor or any of its subsidiaries
(including the Partnership) is the subject which, if
determined adversely to the Guarantor or any of its
subsidiaries (including the Partnership), would individually
or in the aggregate have a material adverse effect on the
current or future consolidated financial position, partners'
capital, stockholders' equity or results of operations of the
Guarantor and its subsidiaries (including the Partnership);
and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(vi) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Partnership and the
Guarantor;
(vii) The Designated Securities have been duly
authorized, executed, issued and delivered and constitute
valid and legally binding obligations of the Partnership
entitled to the benefits provided by the Indenture enforceable
in accordance with their terms, subject, as to enforcement, to
bankruptcy, fraudulent transfer, equitable subordination, fair
dealing, insolvency, reorganization and other laws of general
applicability relating to or affecting
12
creditors' rights and to general equity principles; the
Guarantees have been duly authorized, executed, issued and
delivered by the Guarantor and, when the Designated Securities
have been issued and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by
the Underwriters pursuant to this Agreement and the Pricing
Agreement, the Guarantees will constitute valid and legally
binding obligations of the Guarantor enforceable in accordance
with their terms, subject, as to enforcement, to bankruptcy,
fraudulent transfer, equitable subordination, fair dealing,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; the Securities, the Guarantees
and the Indenture conform to the descriptions thereof in the
Prospectus as amended or supplemented;
(viii) The Indenture has been duly authorized,
executed and delivered by the parties thereto and, when duly
authorized, executed and delivered by the Trustee, constitutes
a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to
bankruptcy, fraudulent transfer, equitable subordination, fair
dealing, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles;
(ix) The issue and sale of the Designated Securities,
the issue of the Guarantees and the compliance by the
Partnership and the Guarantor with all of the provisions of
the Designated Securities, the Guarantees, the Indenture, the
Pricing Agreement and this Agreement and the consummation of
the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Guarantor or any of its subsidiaries (including the
Partnership) is a party or by which the Guarantor or any of
its subsidiaries (including the Partnership) is bound or to
which any of the property or assets of the Guarantor or any of
its subsidiaries (including the Partnership) is subject, nor
will such actions result in any violation of the provisions of
the Articles of Incorporation or By-laws of the Guarantor, the
Certificate of Limited Partnership or partnership agreement of
the Partnership or any statute or any order, rule or
regulation of any court or governmental agency or body known
to us having jurisdiction over the Guarantor or any of its
subsidiaries (including the Partnership) or any of their
properties;
(x) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Designated Securities, the issue of the Guarantees or
the consummation by the Partnership and the Guarantor of the
transactions contemplated by this Agreement or the Pricing
Agreement or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Designated Securities by the Underwriters;
13
(xi) Neither the Guarantor nor any of its
subsidiaries (including the Partnership) is in violation of
its Articles of Incorporation or By-laws, its 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 known to us to which it is a party or by which it
or any of its properties may be bound;
(xii) The statements set forth in the Prospectus
under the caption "Description of the Notes", insofar as they
purport to constitute a summary of the terms of the Designated
Securities and the Guarantees, and under the captions "Federal
Income Tax Considerations" and "Plan of Distribution", insofar
as they purport to describe the provisions of the laws and
documents referred to therein, are accurate and complete in
all material respects;
(xiii) The Guarantor has qualified to be taxed as a
real estate invest-ment 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 Guarantor, including but not limited to
those set forth in an Officer's Certificate, the Guarantor's
present and contemplated organization, ownership, method of
opera-tion, assets and income are such that the Guarantor is
in a position under present law to so qualify for the current
fiscal year and in the future;
(xiv) Neither the Partnership nor the Guarantor is an
"investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act;
(xv) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder;
and they have no reason to believe that any of such documents,
when they became effective or were so filed, as the case may
be, contained, in the case of a registration statement which
became effective under the Act, 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, or, in the case of other documents which were
filed under the Act or the Exchange Act with the Commission,
an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading;
and
(xvi) The Registration Statement and the Prospectus
as amended or supplemented and any further amendments and
supplements thereto made by
14
the Partnership and the Guarantor prior to the Time of
Delivery for the Designated Securities (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to form
in all material respects with the requirements of the Act and
the Trust Indenture Act and the rules and regulations
thereunder; although they do not assume any responsibility
for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus,
except for those referred to in the opinion in subsection
(xii) of this Section 7(c), they have no reason to
believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the
Partnership and the Guarantor prior to the Time of Delivery
(other than the financial statements and related schedules
therein, as to which such counsel need express no opinion)
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 or
that, as of its date, the Prospectus as amended or
supplemented or any further amendment or supplement thereto
made by the Partnership and the Guarantor prior to the Time of
Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading or that, as of the Time
of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment
or supplement thereto made by the Partnership and the
Guarantor prior to the Time of Delivery (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) contains an untrue
statement of a material fact 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; and
they do not know of any amendment to the Registration
Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or
required to be described in the Registration Statement or the
Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required;
(d) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement
with respect to such Designated Securities and at the Time of Delivery
for such Designated Securities, the independent accountants of the
Partnership and the Guarantor and who have certified the financial
statements of the Guarantor and its subsidiaries, the Partnership and
its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to the Representatives a
letter, dated the effective date of the Registration Statement or the
date of the most recent report filed with the Commission containing
financial statements and incorporated by reference in the Registration
Statement, if the date of such report is later than such effective
date, and a letter dated such Time of Delivery, respectively, to the
effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives (the executed copy of the letter
delivered prior to the execution of this Agreement is attached
15
as Annex I(a) hereto and a draft of the form of letter to be delivered
on the effective date of any post-effective amendment to the
Registration Statement and as of each Time of Delivery is attached as
Annex I(b) hereto);
(e) (i) Neither the Guarantor nor any of its subsidiaries
(including the Partnership) shall have sustained since the date of the
latest audited financial statements included or incorporated by
reference in the Prospectus as amended prior to the date of the Pricing
Agreement relating to the Designated Securities any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated
Securities, and (ii) since the respective dates as of which information
is given in the Prospectus as amended prior to the date of the Pricing
Agreement relating to the Designated Securities there shall not have
been any change in the capital stock, mortgage loans payable or
long-term debt of the Guarantor or any of its subsidiaries (including
the Partnership) or in the partners' capital, mortgage loans payable or
long-term debt of the Partnership or any of its subsidiaries or any
change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
partners' capital, stockholders' equity or results of operations of the
Guarantor and its subsidiaries (including the Partnership) otherwise
than as set forth or contemplated in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated
Securities, the effect of which, in any such case described in Clause
(i) or (ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in this Agreement and in the
Prospectus as first amended or supplemented relating to the Designated
Securities;
(f) On or after the date of the Pricing Agreement relating to
the Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Partnership's or the Guarantor's debt securities or
preferred stock by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Partnership's
or the Guarantor's debt securities or preferred stock;
(g) On or after the date of the Pricing Agreement relating to
the Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange (the "NYSE"); (ii)
a suspension or material limitation in trading in the Guarantor's
securities on the NYSE; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State
authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war, if the effect of any such event specified
in this Clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented
relating to the Designated Securities;
16
(h) The Partnership shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
and
(i) The Partnership and the Guarantor shall have furnished or
caused to be furnished to the Representatives at the Time of Delivery
for the Designated Securities certificates of officers of the
Partnership and the Guarantor satisfactory to the Representatives as to
the accuracy of the representations and warranties of the Partnership
and the Guarantor herein at and as of such Time of Delivery, as to the
performance by the Partnership and the Guarantor of all of their
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (e) of
this Section and as to such other matters as the Representatives may
reasonably request.
8. (a) The Guarantor and the Partnership jointly and severally will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment 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 will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Partnership and the Guarantor shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
any preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating to the
Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Partnership and the
Guarantor by any Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or supplemented
relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Partnership
and the Guarantor against any losses, claims, damages or liabilities to which
the Partnership or the Guarantor may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Securities, or
any amendment 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, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
17
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Partnership and the
Guarantor by such Underwriter through the Representatives expressly for use
therein; and will reimburse the Partnership or the Guarantor for any legal or
other expenses reasonably incurred by the Partnership or the Guarantor in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Partnership and the Guarantor on the one hand
and the Underwriters of the Designated Securities on the other from the offering
of the Designated Securities to which such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Partnership or the
Guarantor on the one hand and the Underwriters of the Designated Securities on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Partnership or the Guarantor on the one hand and such
18
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from such offering (before deducting expenses) received by
the Partnership or the Guarantor bear to the total underwriting discounts and
commissions received by such Underwriters, in each case as set forth in the
Prospectus relating to such Securities. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Partnership or the
Guarantor on the one hand or such Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Partnership, the Guarantor and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Partnership and the Guarantor under this
Section 8 shall be in addition to any liability which the Partnership or the
Guarantor may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Partnership or the Guarantor and to each person, if
any, who controls the Partnership or the Guarantor within the meaning of the
Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Partnership
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Partnership that
they have so arranged for the purchase of such Designated Securities, or the
Partnership notifies the Representatives that it has so arranged for the
purchase of such Designated Securities, the Representatives or the Partnership
shall have the right to postpone
19
the Time of Delivery for such Designated Securities for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Partnership
agrees to file promptly any amendments or supplements to the Registration
Statement or the Prospectus which in the opinion of the Representatives may
thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to the Pricing Agreement with respect
to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Partnership as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Partnership shall have the right to require
each non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Partnership as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Partnership shall
not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Designated Securities of a defaulting
Underwriter or Underwriters, then the Pricing Agreement relating to such
Designated Securities shall thereupon terminate, without liability on the part
of any non-defaulting Underwriter or the Partnership, except for the expenses to
be borne by the Partnership and the Underwriters as provided in Section 6 hereof
and the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Partnership, the Guarantor and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Partnership or the Guarantor, or any officer or director or
controlling person of the Partnership or the Guarantor, and shall survive
delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section
7(g) or 9 hereof, the Partnership and the Guarantor shall not then be under any
liability to any Underwriter with respect to the Designated Securities covered
by such Pricing Agreement except as provided in Sections 6 and 8 hereof; but, if
for any other reason Designated Securities are not delivered by or on behalf of
the Partnership as provided herein, the Partnership or the Guarantor will
reimburse the Underwriters through the Representatives for all
20
out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of such Designated
Securities, but the Partnership and the Guarantor shall then be under no further
liability to any Underwriter with respect to such Designated Securities except
as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Partnership or the Guarantor shall be delivered
or sent by mail, telex or facsimile transmission to the address of the
Partnership and the Guarantor set forth in the Registration Statement:
Attention: Secretary; provided, however, that any notice to an Underwriter
pursuant to Section 8(c) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Partnership and the Guarantor by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Partnership and the
Guarantor and, to the extent provided in Sections 8 and 10 hereof, the officers
and directors of the Partnership and the Guarantor and each person who controls
the Partnership or the Guarantor or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement or any such
Pricing Agreement. No purchaser of any of the Securities from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
21
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof.
Very truly yours,
Regency Centers, L.P.
By: Regency Centers Corporation,
general partner
By:______________________________________
Name:
Title:
Regency Centers Corporation
By:______________________________________
Name:
Title:
Accepted as of the date hereof:
First Union Securities, Inc.
By: _______________________________
Name:
Title:
22
ANNEX I
Pricing Agreement
-----------------
First Union Securities, Inc.
As Representatives of the several
Underwriters named in Schedule I hereto
[address to come]
_______________, 20___
Ladies and Gentlemen:
Regency Centers, L.P., a Delaware limited partnership (the
"Partnership"), proposes, subject to the terms and conditions stated herein and
in the Underwriting Agreement, dated December 5, 2001 (the "Underwriting
Agreement"), between the Partnership and Regency Centers Corporation, a Florida
corporation (the "Guarantor"), on the one hand and First Union Securities, Inc.
on the other hand, to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 12
of the Underwriting Agreement and the address of the Representatives referred to
in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Partnership and the
Guarantor agree to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Partnership
and the Guarantor at the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the principal amount of Designated
Securities set forth opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the
23
Underwriters, this letter and such acceptance hereof, including the provisions
of the Underwriting Agreement incorporated herein by reference, shall constitute
a binding agreement between each of the Underwriters, the Partnership and the
Guarantor. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted to
the Partnership and the Guarantor for examination upon request, but without
warranty on the part of the Representatives as to the authority of the signers
thereof.
Very truly yours,
Regency Centers, L.P.
By: Regency Centers Corporation,
general partner
By:______________________________________
Name:
Title:
Regency Centers Corporation
By:______________________________________
Name:
Title:
Accepted as of the date hereof:
First Union Securities, Inc.
By:_______________________________
Name:
Title:
On behalf of each of the Underwriters
24
SCHEDULE I
Principal
Underwriter Amount of
----------- Designated
Securities
to be
Purchased
----------
First Union Securities, Inc. $
[Names of other Underwriters]
Total $
25
SCHEDULE II
Title of Designated Securities:
% Notes due
Aggregate principal amount:
$
Price to Public:
% of the principal amount of the Designated Securities, plus accrued
interest [, if any,] from to
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus accrued
interest [, if any,] from to
Form of Designated Securities:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.
Specified funds for payment of purchase price:
Federal (same day) funds
Time of Delivery:
a.m. (New York City time) on , 19
Indenture:
Indenture dated December 5, 2001 among the Partnership, the Guarantor
and First Union National Bank, as Trustee
Maturity:
Interest Rate:
%
26
Interest Payment Dates:
[months and dates, commencing ....................., 20..]
Redemption Provisions:
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Partnership, in
the amount of [$ ] or an integral multiple thereof,
[on or after , at the following redemption prices
(expressed in percentages of principal amount). If [redeemed on or
before , %, and if] redeemed during the 12-month
period beginning,
Redemption
Year Price
---- ----------
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[Other possible redemption provisions, such as make-whole redemption,
mandatory redemption upon occurrence of certain events or redemption
for changes in tax law]
Sinking Fund Provisions:
[No sinking fund provisions]
Closing location for delivery of Designated Securities:
Additional Closing Conditions:
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
Other Terms:
27
88
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Guarantor and its subsidiaries and the Partnership and
its subsidiaries within the meaning of the Act and the applicable rules
and regulations adopted by the Commission;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the
Act or the Exchange Act, as applicable, and the related rules and
regulations; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Partnership and the Guarantor for the
periods specified in such letter, as indicated in their reports
thereon, copies of which have been separately furnished to the
representative or representatives of the Underwriters (the
"Representatives") such term to include an Underwriter or Underwriters
who act without any firm being designated as its or their
representatives;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Partnership's and the
Guarantor's quarterly reports on Form 10-Q incorporated by reference
into the Prospectus as indicated in their reports thereon copies of
which have been separately furnished to the Representatives; and on the
basis of specified procedures including inquiries of officials of the
Partnership and the Guarantor who have responsibility for financial and
accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i)
below 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, nothing came to their attention that caused them
to believe that the unaudited condensed consolidated financial
statements do not 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;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Partnership and the Guarantor for the five most recent fiscal years
included in the Prospectus and included or incorporated by reference in
Item 6 of the Partnership' s and the Guarantor's Annual Reports on Form
10-K for the most recent fiscal year agrees with the corresponding
amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years included
or incorporated by reference in the Partnership's and the Guarantor's
Annual Reports on Form 10-K for such fiscal years;
28
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302,
402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Partnership and its subsidiaries
and the Guarantor and its subsidiaries, inspection of the minute books
of the Partnership and its subsidiaries and the Guarantor and its
subsidiaries since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, inquiries of
officials of the Partnership and its subsidiaries and the Guarantor and
its subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference in the
Partnership's and the Guarantor's Quarterly Reports on Form
10-Q incorporated by reference in the Prospectus do not comply
as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the published
rules and regulations adopted by the Commission, or (ii) any
material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows
included in the Prospectus or included in the Partnership's
and the Guarantor's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in
the Partnership's and the Guarantor's Annual Reports on Form
10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in clause (B)
were not determined on a basis substantially consistent with
the basis for the audited financial statements included or
incorporated by reference in the Partnership's and the
Guarantor's Annual Reports on Form 10-K for the most recent
fiscal year;
29
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the rules and regulations adopted by the Commission
thereunder or the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock 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 Partnership and its subsidiaries or the
Guarantor and its subsidiaries, or any decreases in
consolidated net current 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 amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in clause (E)
there were any decreases in 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 each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records
of the Partnership and its subsidiaries and the Guarantor and its
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Partnership and its subsidiaries or the
Guarantor and its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
30