Regency Centers Corporation
Preferred Stock, Depositary Shares and Common Stock
Underwriting Agreement
----------------------
March 27, 2003
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
From time to time Regency Centers Corporation, a Florida corporation (the
"Company"), 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 preferred stock, depositary shares or common
stock (the "Securities") specified in Schedule II to such Pricing Agreement
(with respect to such Pricing Agreement, the "Designated Securities").
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 resolutions of the board of directors of the Company or a duly
appointed committee thereof identified in the 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 Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company 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 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 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 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 Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-37911),
including post-effective amendment No. 1 thereto (the "Initial
Registration Statement") in respect of the Securities 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, 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, 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
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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 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 Company 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 Company 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 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 Company by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
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(d) Neither the Company nor any of its subsidiaries (including
Regency Centers, L.P., a Delaware limited partnership (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 Company or any of its subsidiaries (including
the Partnership) (other than issuances of capital stock in connection
with employee benefit plans, the exercise of options, the exchange of
Partnership units and the payment of earn-outs pursuant to contractual
commitments) or in the partners' capital of the Partnership or any of its
subsidiaries, any change in mortgage loans payable or long-term debt of
the Company or any of its subsidiaries (including the Partnership) in
excess of $20,000,000 or in the mortgage loans payable or long-term debt
of the Partnership or any of its subsidiaries or any material adverse
change in excess of $20,000,000, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity, partners' capital
or results of operations of the Company and its subsidiaries (including
the Partnership), otherwise than as set forth or contemplated in the
Prospectus and except that on March 18, 2003, the Partnership redeemed
$35 million of Series C Preferred Units and $40 million of Series E
Preferred Units for 101% of their liquidation preference, using funds
provided by the Partnership's line of credit, and granted the holders a
put option for 60 days thereafter to sell an additional $25 million of
such preferred units to the Partnership on the same terms and conditions
(the "March 2003 Partnership Redemption");
(e) The Company and its subsidiaries (including the
Partnership) have good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned
by them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as do
not materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the
Company and its subsidiaries (including the Partnership); and any real
property and buildings held under lease by the Company and its
subsidiaries (including the Partnership) are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its subsidiaries
(including the Partnership);
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Florida, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; the Partnership has been duly
organized and is validly existing in good standing under the laws of
the State of Delaware, with power and authority to own its properties
and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign partnership for the transaction of business
and
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is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; and each subsidiary of the Company has been duly
incorporated or organized and is validly existing as a corporation or
other entity in good standing under the laws of its jurisdiction of
incorporation or organization;
(g) All of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; the capital stock of the Company conforms in all
material respects to the description thereof in the Prospectus as
amended or supplemented; and, except as set forth on Exhibit A, all of
the issued shares of capital stock or other equity interests of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and (except as set forth on
Exhibit A and directors' qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims; all of the issued partnership interests of the
Partnership have been duly and validly authorized and issued and are
fully paid and non-assessable;
(h) The Designated Securities have been duly and validly
authorized, and, when Designated Securities are issued and delivered
pursuant to this Agreement and the Pricing Agreement with respect to
such Designated Securities, such Designated Securities will be duly and
validly issued and fully paid and, except as set forth in the
Prospectus under the captions "Description of Common Shares --
Shareholder Liability" and "Description of Preferred Shares --
Shareholder Liability", non-assessable; and the Designated Securities
conform to the description thereof contained in the Registration
Statement and the Prospectus as amended or supplemented with respect to
such Designated Securities; upon issuance of depositary receipts
("Receipts") evidencing depositary shares against the deposit of
Securities in respect thereof in accordance with the provisions of a
deposit agreement ("Deposit Agreement"), such Receipts will be duly and
validly issued and the persons in whose names the Receipts are
registered will be entitled to the rights specified therein and in the
Deposit Agreement;
(i) The Mirror Partnership Units (as defined in Section 7(i)
below) have been duly and validly authorized and issued and are fully
paid and non-assessable, and have the same rights, preferences, terms
and provisions as the Designated Securities.
(j) This Agreement has been duly authorized, executed and
delivered by the Company; and any Deposit Agreement will be duly
authorized, executed and delivered by the Company and will be a valid,
binding and enforceable obligation of the Company
(k) 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 G, T, U, and X of the Board of Governors of the Federal
Reserve System;
(l) Prior to the date hereof, neither the Company nor any of
its affiliates (including the Partnership) has taken any action which
is designed to or which has constituted or which might have been
expected to cause or result in stabilization or
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manipulation of the price of any security of the Company or the
Partnership in connection with the offering of the Designated Securities;
(m) The issue and sale of the Securities and the compliance by
the Company and the Partnership with all of the provisions of the
Securities, the Deposit Agreement, 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 Company or any of its subsidiaries
(including the Partnership) is a party or by which the Company or any
of its subsidiaries (including the Partnership) is bound or to which
any of the property or assets of the Company or any of its subsidiaries
(including the Subsidiaries) is subject, nor will such action result in
any violation of the provisions of the Articles of Incorporation or
By-laws of the Company, the Certificate of Limited Partnership or
partnership agreement of the Partnership or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries (including the
Partnership) or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale
of the Securities or the consummation by the Company and the
Partnership of the transactions contemplated by this Agreement or any
Pricing Agreement, except such as have been, or will have been prior to
the Time of Delivery (as defined in Section 4 hereof), obtained under
the Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Securities
by the Underwriters;
(n) Neither the Company nor any of its subsidiaries (including
the Partnership) is in violation of its Articles of Incorporation,
By-laws, Certificate of Limited Partnership or partnership agreement or
in default in the performance or observance of any material obligation,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound;
(o) The statements set forth in the Registration Statement
under the captions "Description of the Common Stock", "Description of
Preferred Stock", "Description of Depositary Shares", "Federal Income
Tax Considerations", and "Plan of Distribution" are, and the statements
made in the Prospectus as amended or supplemented under corresponding
or similar captions to the extent made are, insofar as such statements
constitute a summary of the terms of the Securities and the laws and
documents referred to therein, are accurate and complete in all
material respects;
(p) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries (including the Partnership) is a party or of which
any property of the Company or any of its subsidiaries (including the
Partnership) is the subject which, if determined adversely to the
Company or any of its subsidiaries (including the Partnership), would
individually or in the aggregate have a material adverse effect on the
current or future financial position, stockholders' equity, partners'
capital or results of operations of the Company and its subsidiaries
(including the Partnership); and, to the best of the Company's
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knowledge and the Partnership's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(q) The Company 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 Company' s present and contemplated organization,
ownership, method of operation, assets and income are such that the
Company is in a position under present law to so qualify for the
current fiscal year and in the future;
(r) Neither the Company 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 Company or the Partnership; and in
connection with the construction on or operation and use of the
properties owned by the Company and the Partnership, neither has any
knowledge of any material failure to comply with all applicable local,
state and federal environmental laws, regula-tions, agency
requirements, ordinances and administrative and judicial orders;
(s) Neither the Company nor the Partnership is, and after
giving effect to the offering and sale of the Securities, will be an
"investment company", or an entity "controlled" by an "investment
company", as such terms are defined in the United States Investment
Company Act of 1940, as amended (the "Investment Company Act"); and
(t) KPMG LLP, who have certified certain financial statements
of the Company and its subsidiaries and the Partnership and its
subsidiaries, are independent public accountants as required by the Act
and the rules and regulations of the Commission thereunder.
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 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.
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 Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to the
Representatives at least forty-eight hours in advance or at such other place and
time and date as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery" for such
Securities.
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5. The Company agrees 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 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 Company 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 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; provided, that in connection therewith
the Company shall not 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
8
sale of the Securities and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus 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, to notify the Representatives and upon
their request to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of
the Company, Rule 158);
(e) During 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 Company 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 Company 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 stockholders of
the Company and to deliver to the Representatives (i) as soon as they
are available, copies of any reports and financial statements furnished
to or filed with the Commission or any securities exchange on which the
Securities or any class of securities of the Company is listed; and
(ii) such additional information concerning the business and financial
condition of the Company as the Representatives may from time to time
reasonably request (such financial statements to be on a consolidated
basis to the extent the accounts of the Company and its subsidiaries
are consolidated in reports furnished to its stockholders generally or
to the Commission);
(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 Company elects to rely upon Rule 462(b), the
Company and the Partnership 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
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Agreement, and the Partnership and the Company shall at the time of
filing either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with each of the several
Underwriters that, whether or not the transactions contemplated in this
Agreement and the Pricing Agreement are consummated or this Agreement is
terminated, the Company will pay or cause to be paid the following expenses
incident to the performance of its obligations: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses, including
the cost of all audits, statements or reports, 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 Deposit Agreement, 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; (iii) all expenses in connection with the qualification of
the Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky and legal investment surveys; (iv) any fees charged by
securities rating services for rating the Securities; (v) any fees and expenses
relating to the eligibility and issuance of Securities in book-entry form and
the cost of obtaining CUSIP or other identification numbers fo the Securities
(vi) 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; (vii) the cost of preparing certificates for Securities; all
expenses in connection with the issue and delivery of the Securities to the
Underwriters as contemplated in Section 1 hereof; (viii) the fees and expenses
of any transfer agent or registrar or dividend disbursing agent or depositary
and the reasonable fees and disbursements of counsel for any such agent of agent
in connection with the Securities; (viii) all Federal and State taxes (if any)
payable (not including any transfer tax) upon the issue of the Securities; (ix)
fees and expenses incurred in connection with any listing of the Securities on a
securities exchange; (x) the Company's costs and expenses relating to investor
presentations on any "road show" undertaken in connection with the marketing of
the offering of the Securities, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and lodging
expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show, and (xi) 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.
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
10
statements of the Company 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, and the condition that the
Company 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 Company 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,
dated the Time of Delivery for such Designated Securities, with respect
to such matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Foley & Lardner, counsel for the Company, 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 Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Florida, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus as amended or
supplemented; 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;
(ii) All of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and
are fully paid and non-assessable; 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;
(iii) Each of the Company and the Partnership 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
11
the opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the
Company or the Partnership, 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 Company 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 Company, 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 Company or the
Partnership 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 Company or any of its subsidiaries
(including the Partnership) is a party or of which any
property of the Company or any of its subsidiaries (including
the Partnership) is the subject which, if determined adversely
to the Company or any of its subsidiaries (including the
Partnership), would individually or in the aggregate have a
material adverse effect on the current or future consolidated
financial position, partners' capital, stockholders' equity or
results of operations of the Company 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 Company;
(vii) The Designated Securities have been duly
authorized, executed, issued and delivered by the Company and
constitute valid and legally binding obligations of the
Company 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 conform to the descriptions
thereof in the Prospectus as amended or supplemented;
(viii) The Mirror Partnership Units have been duly
and validly authorized and issued and are fully paid and
non-assessable, and have the same rights, preferences, terms
and provisions as the Designated Securities.
12
(ix) The issue and sale of the Designated Securities
and the compliance by the Company with all of the provisions
of the Designated Securities, the Deposit Agreement, 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
Company or any of its subsidiaries (including the Partnership)
is a party or by which the Company or any of its subsidiaries
(including the Partnership) is bound or to which any of the
property or assets of the Company or any of its subsidiaries
(including the Partnership) is subject, nor will such actions
result in any violation of the provisions of the Articles of
Incorporation or By-laws of the Company, the Certificate of
Limited Partnership or partnership agreement of the
Partnership or any statute or any order, rule or regulation of
any court or governmental agency or body known to us having
jurisdiction over the Company 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 or the consummation by the
Company and the Partnership of the transactions contemplated
by this Agreement or the Pricing Agreement, except such as
have been obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Designated
Securities by the Underwriters;
(xi) Neither the Company 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 captions "Description of Common Stock", "Description
of Preferred Stock", "Description of Depositary Shares" and
"Description of Series 3 Preferred Stock and Depositary Shares
Description", insofar as they purport to constitute a summary
of the terms of the Designated Securities, and under the
captions "Federal Income Tax Considerations", "Certain 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 Company 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,
13
and based on assumptions set forth in the Prospectus and certain
representations of the Company, including but not limited to
those set forth in an Officer's Certificate, the Company's
present and contemplated organization, ownership, method of
opera-tion, assets and income are such that the Company is in
a position under present law to so qualify for the current
fiscal year and in the future;
(xiv) Neither the Company nor the Partnership 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 the Partnership and the Company
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 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
Company 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 Company 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 Company and the Partnership 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
14
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
Company and the Partnership who have certified the financial statements
of the Company 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 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 Company nor any of its subsidiaries
(including the Partnership) shall have sustained since the date of the
latest audited financial statements included or incorporated by
reference in the 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 Company or any of its subsidiaries (including the
Partnership) or in the partners' capital, mortgage loans payable or
long-term debt of the Partnership or any of its subsidiaries, or any
change, or any development involving a
15
prospective change, in or affecting the general affairs, management,
financial position, partners' capital, stockholders' equity or results of
operations of the Company and its subsidiaries (including the
Partnership), taken as a whole, than is otherwise set forth or
contemplated in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Securities and other than
the March Partnership Redemption (as defined in Section 2(d)), the effect
of which, in any such case described in Clause (i) or (ii), is material
and adverse, in the judgment of the Representatives, and that makes it,
in the judgment of the Representatives, impracticable or inadvisable to
market or 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 Company's or the Partnership'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 Company's or
the Partnership'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 Company's
securities on the NYSE; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State
authorities; (iv) a material disruption in commercial banking or
securities settlement, payment or clearance services in the United
States; (v) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national
emergency or war; or (vi) the occurrence of any other calamity or
crisis or any change, in financial, political or economic conditions in
the United States or elsewhere, if the effect of any such event
specified in Clause (v) or (vi) 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;
(h) The Company 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;
(i) The Partnership has duly authorized and issued Partnership
Interests (as defined in the Fourth Amended and Restated Agreement of
Limited Partnership of the Partnership, dated as of April 1, 2001) in
number and amount equal to and of the same rights, preferences, terms
and provisions as the Designated Securities.
(j) The Company 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 Company satisfactory to the
Representatives as to the accuracy of the
16
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
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 Company will indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any and all losses, expenses, claims, damages or liabilities, joint
or several, to which such Underwriter or such controlling person may become
subject, under the Act or otherwise, insofar as such losses, expenses, 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 and
each person who controls any Underwriting as aforesaid 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 Company shall not be
liable in any such case to the extent that any such loss, expense, 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 Company 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 Company and
each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, expenses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as such
losses, expenses, 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 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 Company by such Underwriter
through the Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
17
(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 at its own expenses, or if it so elects, to assume the defense, jointly
with any other indemnifying party similarly notified, such defense being
conducted by counsel satisfactory to the indemnified party, and the indemnifying
party shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expenses of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the indemnified party has reasonably concluded (based on advice of counsel)
that there may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the indemnifying
party. It is understood that the indemnifying party shall not, in respect of the
legal expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by
Morgan Stanley & Co. Incorporated, in the case of parties indemnified pursuant
to subsection (a) above, and by the Company, in the case of parties indemnified
pursuant to subsection (b) above. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement and judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated in this subsection (c), the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. 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, expenses, 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
18
indemnified party as a result of such losses, expenses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company 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, expense, 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 Company 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,
expenses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and such 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 Company 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 Company
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 Company 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, expenses, 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 Company under this Section 8 shall be in
addition to any liability which the Company 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 Company and to each
person, if any, who controls the Company and the Partnership within the meaning
of the Act.
19
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 Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have the right
to postpone 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 Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to 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 Company as provided in subsection (a) above, the
aggregate amount of such Designated Securities which remains unpurchased does
not exceed one-eleventh of the aggregate amount of the Designated Securities,
then the Company shall have the right to require each non-defaulting Underwriter
to purchase the 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 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 Company as provided in subsection (a) above, the
aggregate amount of Designated Securities which remains unpurchased exceeds
one-eleventh of the aggregate amount of the Designated Securities, as referred
to in subsection (b) above, or if the Company 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 Company, except for the expenses to be borne by the Company 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 Company 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
20
force and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or any officer or director or
controlling person of the Company, 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 Company 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 Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company 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 Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company 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 Company 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 and the Company and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and each person who controls the Company 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.
21
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.
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof.
Very truly yours,
Regency Centers Corporation
By:
Name:
Title:
Accepted as of the date hereof:
Morgan Stanley & Co. Incorporated
By:. . . . . . . . . . . . . . . . .
22
ANNEX I
Pricing Agreement
. . . . . . . . . . . , 20..
Morgan Stanley & Co. Incorporated
As Representative of the several
Underwriters named in Schedule I hereto
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Regency Centers Corporation, a Florida corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated March 27, 2003 (the "Underwriting Agreement"),
between the Corporation and Morgan Stanley & Co. Incorporated 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 Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the amount of Designated Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
23
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 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
and the Company.
Very truly yours,
Regency Centers Corporation
By:
Name:
Title:
Accepted as of the date hereof:
Morgan Stanley & Co. Incorporated
By: . . . . . . . . . . . . . . . . . .
On behalf of each of the Underwriters
24
SCHEDULE I
Principal
Underwriter Amount of
Designated
Securities
to be
Purchased
Morgan Stanley & Co. Incorporated. $
$
[Names of other Underwriters]
Total $
25
SCHEDULE II
Title of Designated Securities:
Number of Shares:
$
Price to Public:
$ per share
Purchase Price by Underwriters:
$ per share
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 , 20
Dividend Payment Dates:
[months and dates, commencing ....................., 20..]
Redemption Provisions:
Closing location for delivery of Designated Securities:
Additional Closing Conditions:
26
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
Other Terms:
27
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 Company 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 Company 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 Company's and the
Partnership'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
Company 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
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report 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
Company's and the Partnership'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 Company and its subsidiaries,
inspection of the minute books of the Company 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 Company 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 Company'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 Company's and the Partnership'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
Company's Annual Report 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 Company's and the
Partnership'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
Company and its subsidiaries or the Partnership 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 Company and its subsidiaries and the Partnership 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 Company and its subsidiaries or the
Partnership 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
30
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.
31
EXHIBIT A TO UNDERWRITING AGREEMENT
Subsidiaries of Regency Centers Corporation and Equity Ownership Thereof
ENTITY JURISDICTION OWNER(S)
- ---------------------------------------------------------------------------------------------------------------------
Regency Centers, L.P. Delaware Regency Centers Corporation
Regency Centers Texas, LLC
Outside Investors
Regency Remediation, LLC Florida Regency Centers, L.P.
Equiport Associates, L.P. Georgia Regency Centers, L.P.
Outside Investors
Queensboro Associates, L.P. Georgia Regency Centers, L.P.
Real Sub, LLC (Outside Investor)
Northlake Village Shopping Center, LLC Florida Regency Centers, L.P.
Regency Southgate Village Shopping Alabama Regency Centers, L.P.
Center, LLC
RRG Holdings, LLC Florida Regency Centers, L.P.
Regency Realty Group, Inc. Florida Regency Centers, L.P.
RRG Holdings, LLC
ENTITY JURISDICTION OWNER(S)
- ---------------------------------------------------------------------------------------------------------------------
Regency Realty Colorado, Inc. Florida Regency Realty Group, Inc.
Snowden Leftwich
(See Note 2)
Chestnut Powder, LLC Georgia Regency Realty Group, Inc.
Marietta Outparcel, Inc. Georgia Regency Realty Group, Inc.
Thompson-Nolensville, LLC Florida Regency Realty Group, Inc.
Dixon, LLC Florida Regency Realty Group, Inc.
Rhett-Remount, LLC Florida Regency Realty Group, Inc.
Edmunson Orange Corp. Tennessee Regency Realty Group, Inc.
Tulip Grove, LLC Florida Regency Realty Group, Inc.
Hermitage Development, LLC Florida Regency Realty Group, Inc.
West End Property, LLC Florida Regency Realty Group, Inc.
Tinwood, LLC Florida Regency Realty Group, Inc.
Mountain Meadow, LLC Delaware Regency Realty Group, Inc.
Middle Tennessee Development, LLC Delaware Regency Realty Group, Inc.
Hermitage Development II, LLC Florida Regency Realty Group, Inc.
Bordeaux Development, LLC Florida Regency Realty Group, Inc.
Atlantic-Pennsylvania, LLC Florida Regency Realty Group, Inc.
2
ENTITY JURISDICTION OWNER(S)
- ---------------------------------------------------------------------------------------------------------------------
8th and 20th Chelsea, LLC Delaware Regency Realty Group, Inc.
Slausen Central, LLC Delaware Regency Realty Group, Inc.
Jog Road, LLC Florida Regency Realty Group, Inc.
Outside Investor
Southland Centers II, LLC Florida Jog Road, LLC
Broadman, LLC Delaware Regency Realty Group, Inc.
GME/RRG I, LLC Delaware Regency Realty Group, Inc.
Outside Investor
K&G/Regency II, LLC Delaware Regency Realty Group, Inc.
GME Anaheim, LLC (Outside Investor)
RRG-RMC-Tracy, LLC Delaware Regency Centers, L.P.
RMC Tracy, LLC (Outside Investor)
Regency Ocean East Partnership Limited Florida Regency Centers, L.P.
WLD Realty, Ltd. (Outside Investor)
Regency Woodlands/Kuykendahl, Ltd. Texas Regency Centers, L.P.
HEB Grocery Company, LP (Outside Investor)
OTR/Regency Colorado Realty Holdings, L.P. Ohio Regency Centers, L.P.
OTR (nominee for State Teachers
Retirement Board of Ohio)
3
ENTITY JURISDICTION OWNER(S)
- ---------------------------------------------------------------------------------------------------------------------
OTR/Regency Texas Realty Holdings, L.P. Ohio Regency Centers, L.P.
OTR (nominee for State Teachers
Retirement Board of Ohio)
R&KS Dell Range, LLC Wyoming Regency Centers, L.P.
T&M Shiloh Development Company Texas Regency Centers, L.P.
Topvalco
T&R New Albany Development Company LLC Ohio Regency Centers, L.P.
Luther Properties, Inc. Tennessee Regency Realty Group, Inc.
Regency Realty Group, N.E. Florida Regency Realty Group, Inc.
Vista Village, LLC Delaware Regency Realty Group, Inc.
Civic Partners Vista Village I, LLC
Valleydale, LLC Florida Regency Realty Group, Inc.
East Towne Center, LLC Delaware Regency Realty Group, Inc.
Regency/DS Ballwin, LLC Missouri Regency Realty Group, Inc.
DS Ballwin Partners, Inc. (Outside
Investor)
Regency Centers Advisors, LLC Florida Regency Centers, L.P.
RC Georgia Holdings, LLC Georgia Regency Centers, L.P.
4
ENTITY JURISDICTION OWNER(S)
- ---------------------------------------------------------------------------------------------------------------------
Regency Centers Georgia, L.P. Georgia RC Georgia Holdings LLC
Regency Centers, L.P.
Regency Centers Texas, LLC Florida Regency Centers Corporation
Columbia Regency Retail Partners, LLC Delaware Regency Centers, L.P.
Oregon Public Employees
Retirement Fund
Columbia Regency Texas 1, L.P. Delaware Regency Texas 1, LLC
Columbia Regency Retail
Partners, LLC
Regency Texas 1, LLC Delaware Columbia Regency Retail
Partners, LLC
Macquarie CountryWide-Regency, LLC Delaware Regency Center, L.P.
Macquarie CountryWide (US)Corporation
MCW-RC FL-King's, LLC (fka MCW-RC Florida, LLC) Delaware Macquarie CountryWide-Regency, LLC
MCW-RC FL-Anastasia, LLC Delaware Macquarie CountryWide-Regency, LLC
MCW-RC FL-Ocala, LLC Delaware Macquarie CountryWide-Regency, LLC
MCW-RC FL-Shoppes at Pebblebrooke, LLC Delaware Macquarie CountryWide-Regency, LLC
5
ENTITY JURISDICTION OWNER(S)
- ---------------------------------------------------------------------------------------------------------------------
MCW-RC FL-Shoppes at 104, LLC Delaware Macquarie CountryWide-Regency, LLC
MCW-RC NC-Oakley, LLC (fka MCW-RC North Carolina, Delaware Macquarie CountryWide-Regency, LLC
LLC)
MCW-RC SC-Merchant's, LLC (fka MCW-RC South Delaware Macquarie CountryWide-Regency, LLC
Carolina, LLC)
MCW-RC VA-Brookville, LLC (fka MCW-RC Virginia, LLC) Delaware Macquarie CountryWide-Regency, LLC
MCW-RC Texas GP, LLC Delaware Macquarie CountryWide-Regency, LLC
MCW-RC TX-Hebron, LLC (fka MCW-RC Texas, L.P.) Delaware Macquarie CountryWide-Regency, LLC
MCW-RC Texas GP, LLC
MCW-RC GA-Lovejoy, LLC (fka MCW-RC Georgia, LLC) Delaware Macquarie CountryWide-Regency, LLC
MCW-RC GA-Orchard, LLC Delaware Macquarie CountryWide-Regency, LLC
MCW-RC CO-Cheyenne, LLC Delaware Macquarie CountryWide-Regency, LLC
MCW-RC CA-Campus, LLC (fka MCW-RC California), LLC Delaware Macquarie CountryWide-Regency, LLC
MCW-RC CA-Garden Village, LLC Delaware Macquarie CountryWide-Regency, LLC
6
ENTITY JURISDICTION OWNER(S)
- ---------------------------------------------------------------------------------------------------------------------
MCW-RC WA-James, LLC (fka MCW-RC Washington, LLC) Delaware Macquarie CountryWide-Regency, LLC
MCW-RC AL-Trace Crossing, LLC Delaware Macquarie CountryWide-Regency, LLC
MCW-RC KY-Silverlake, LLC (fka MCW-RC Kentucky, LLC) Delaware Macquarie CountryWide-Regency, LLC
Columbia Retail Washington 1, LLC Delaware Columbia Regency Retail Partners LLC
Columbia Cascade Plaza, LLC Delaware Columbia Regency Retail Washington 1, LLC
Columbia Regency Retail Partners, LLC
Columbia Retail Texas 2, LLC Delaware Columbia Regency Retail Partners, LLC
Columbia Retail MacArthur Phase II, LP Delaware Columbia Retail Texas 2, LLC
Columbia Regency Retail Partners, LLC
7
NATURE OF % OF
ENTITY INTEREST OWNERSHIP
- -----------------------------------------------------------------------------------------------------------
Regency Centers, L.P. General Partnership 1.0%
Limited Partnership 96.3%
Limited Partnership 2.7%
Regency Remediation, LLC Member 100%
Equiport Associates, L.P. General Partnership 55%
Limited Partnership 45%
Queensboro Associates, L.P. General Partnership 50%
Limited Partnership 50%
Northlake Village Shopping Center, LLC Member 100%
Regency Southgate Village Shopping Member 100%
Center, LLC
RRG Holdings, LLC Member 100%
Regency Realty Group, Inc. Preferred Stock 100%
(See Note 1)
Common Stock 7%
(See Note 1)
Common Stock 93%
(See Note 1)
NATURE OF % OF
ENTITY INTEREST OWNERSHIP
- -----------------------------------------------------------------------------------------------------------
Regency Realty Colorado, Inc. Common Stock 80%
Common Stock 20%
Chestnut Powder, LLC Member 100%
Marietta Outparcel, Inc. Common Stock 100%
Thompson-Nolensville, LLC Member 100%
Dixon, LLC Member 100%
Rhett-Remount, LLC Member 100%
Edmunson Orange Corp. Common Stock 100%
Tulip Grove, LLC Member 100%
Hermitage Development, LLC Member 100%
West End Property, LLC Member 100%
Tinwood, LLC Member 100%
Mountain Meadow, LLC Member 100%
Middle Tennessee Development, LLC Member 100%
Hermitage Development II, LLC Member 100%
Bordeaux Development, LLC Member 100%
Atlantic-Pennsylvania, LLC Member 100%
2
NATURE OF % OF
ENTITY INTEREST OWNERSHIP
- -----------------------------------------------------------------------------------------------------------
8th and 20th Chelsea, LLC Member 100%
Slausen Central, LLC Member Note 3
Jog Road, LLC Member 50%
Member 50%
Southland Centers II, LLC Member 100%
Broadman, LLC Member 100%
GME/RRG I, LLC Member 50%
Member 50%
K&G/Regency II, LLC Member 50%
Member 50%
RRG-RMC-Tracy, LLC Member 50%
Member 50%
Regency Ocean East Partnership Limited General Partnership 25%
Limited Partnership 75%
Regency Woodlands/Kuykendahl, Ltd. General Partnership 50%
Limited Partnership 50%
OTR/Regency Colorado Realty Holdings, L.P. General Partnership 30%
Limited Partnership 70%
3
NATURE OF % OF
ENTITY INTEREST OWNERSHIP
- -----------------------------------------------------------------------------------------------------------
OTR/Regency Texas Realty Holdings, L.P. General Partnership 30%
Limited Partnership 70%
R&KS Dell Range, LLC Member 100%
T&M Shiloh Development Company General Partnership 50%
General Partnership 50%
T&R New Albany Development Company LLC Member 50%
Member 50%
Luther Properties, Inc. Common Stock 100%
Regency Realty Group, N.E. Common Stock 100%
Vista Village, LLC Member 50%
Member 50%
Valleydale, LLC Member
East Towne Center, LLC Member
Regency/DS Ballwin, LLC Member 50%
Member 50%
Regency Centers Advisors, LLC Member 100%
RC Georgia Holdings, LLC Member 100%
4
NATURE OF % OF
ENTITY INTEREST OWNERSHIP
- -----------------------------------------------------------------------------------------------------------
Regency Centers Georgia, L.P. General Partnership 1%
Limited Partnership 99%
Regency Centers Texas, LLC Member 100%
Columbia Regency Retail Partners, LLC Member 20%
Member 80%
Columbia Regency Texas 1, L.P. General Partnership 1%
Limited Partnership 99%
Regency Texas 1, LLC
Member 100%
Macquarie CountryWide-Regency, LLC Member 25%
Member 75%
MCW-RC FL-King's, LLC (fka MCW-RC Florida, LLC) Member 100%
MCW-RC FL-Anastasia, LLC Member 100%
MCW-RC FL-Ocala, LLC Member 100%
MCW-RC FL-Shoppes at Pebblebrooke, LLC Member 100%
5
NATURE OF % OF
ENTITY INTEREST OWNERSHIP
- -----------------------------------------------------------------------------------------------------------
MCW-RC FL-Shoppes at 104, LLC Member 100%
MCW-RC NC-Oakley, LLC (fka MCW-RC North Carolina, Member 100%
LLC)
MCW-RC SC-Merchant's, LLC (fka MCW-RC South Member 100%
Carolina, LLC)
MCW-RC VA-Brookville, LLC (fka MCW-RC Virginia, LLC) Member 100%
MCW-RC Texas GP, LLC Member 100%
MCW-RC TX-Hebron, LLC (fka MCW-RC Texas, L.P.) Limited Partnership 99.99%
General Partnership 0.01%
MCW-RC GA-Lovejoy, LLC (fka MCW-RC Georgia, LLC) Member 100%
MCW-RC GA-Orchard, LLC Member 100%
MCW-RC CO-Cheyenne, LLC Member 100%
MCW-RC CA-Campus, LLC (fka MCW-RC California), LLC Member 100%
MCW-RC CA-Garden Village, LLC Member 100%
6
NATURE OF % OF
ENTITY INTEREST OWNERSHIP
- -----------------------------------------------------------------------------------------------------------
MCW-RC WA-James, LLC (fka MCW-RC Washington, LLC) Member 100%
MCW-RC AL-Trace Crossing, LLC Member 100%
MCW-RC KY-Silverlake, LLC (fka MCW-RC Kentucky, LLC) Member 100%
Columbia Retail Washington 1, LLC Member 100%
Columbia Cascade Plaza, LLC Member 1%
Member 99%
Columbia Retail Texas 2, LLC Member 100%
Columbia Retail MacArthur Phase II, LP Member 1%
Member 99%
Note 1: These shares are pledged to the lenders under Regency Centers, L.P.'s
line of credit.
Note 2: Snowden Leftwich is a Regency employee who is the licensed broker for
this entity. Colorado requires that the broker must own a minimum of 20% of the
equity in a licensed entity.
Note 3: Regency is negotiating with an outside investor to participate in
Slausen Central, LLC. At this time the extent of the participation has not been
determined.
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