Regency Centers, L.P.
Amendment Dated November 11, 2004 to the Fourth Amended
and Restated Agreement of Limited Partnership
This Amendment Dated November 11, 2004 to the Fourth Amended
and Restated Agreement of Limited Partnership (this "Amendment") is entered into
as of the 11th day of November, 2004, by and between Regency Centers Corporation
("RCC" or "General Partner"), a Florida corporation (formerly known as Regency
Realty Corporation), as the general partner of Regency Centers, L.P., a Delaware
limited partnership (the "Partnership"), Belcrest Realty Corporation, a Delaware
corporation ("Belcrest") and Belport Realty Corporation, a Delaware corporation
("Belport"; each of Belcrest and Belport a "Series D Preferred Partner" and
collectively, the "Series D Preferred Partners").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Series D Preferred Units were established by that
certain Amendment No. 3 to the Partnership Agreement (the "Third Amendment"),
dated as of September 29, 1999;
WHEREAS, the Partnership and the Series D Preferred Partners
desire to amend the terms of the Series D Preferred Units (as defined in the
Third Amendment), to provide that, inter alia, from and after the date hereof,
the Series D Priority Return that accrues on such Series D Preferred Units shall
accrue at the rate per annum of 7.45%, and from and after the date hereof, the
holders of the Series D Preferred Units shall have certain additional voting
rights as set forth herein;
WHEREAS, the parties hereto desire to amend that certain
Fourth Amended and Restated Agreement of Limited Partnership, dated as of April
1, 2001 (as amended, the "Partnership Agreement"), as set forth herein; and, any
terms capitalized herein but not defined herein having the definitions therefor
set forth in the Partnership Agreement; and
WHEREAS, the parties hereto desire to cause an amendment to be
made to the Articles of Incorporation of RCC amending the preferences, rights
and limitations of RCC's 500,000 shares of authorized 9.125% Series D Cumulative
Redeemable Preferred Stock (the "Articles of Amendment"; the Partnership
Agreement and the Articles of Amendment as amended hereby are, collectively, the
"Amended Documents"), as set forth herein.
NOW, THEREFORE, in consideration of the foregoing, of the
mutual promises set forth herein, and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, agree to continue the Partnership and
amend the Amended Documents as follows:
1. Partnership Agreement. The Partnership Agreement is
hereby amended as follows:
(a) The definition of "Series D Preferred Units" in Section
1(a) of the Third Amendment is hereby amended by deleting the term "9.125%"
therein and inserting the term "7.45%" in lieu thereof.
(b) The definition of "Series D Priority Return" in Section
1(a) of the Third Amendment is hereby amended by deleting the term "9.125%"
therein and inserting the term "7.45%" in lieu thereof.
(c) Section 4.8(a) of the Partnership Agreement is hereby
amended by deleting the term "9.125%" therein and inserting the term "7.45%" in
lieu thereof.
(d) Section 4.8(c) of the Partnership Agreement is hereby
amended by deleting the term 9.125%" therein and inserting the term "7.45%" in
lieu thereof.
(e) Section 4.8(e)(i) of the Partnership Agreement is hereby
amended by deleting the phrase "the fifth (5th) anniversary of the issuance
date" therein and inserting "September 29, 2009" in lieu thereof.
(f) Section 4.8(f) of the Partnership Agreement is hereby
amended by inserting the following as new paragraph (iii) after paragraph (ii)
therein:
"(iii) Certain Additional Voting Rights. Notwithstanding
anything herein to the contrary, so long as any Series D Preferred
Units remain outstanding, RCC shall solicit the affirmative
vote of the holders of at least two-thirds (2/3) of the Series D
Preferred Units outstanding at the time, prior to (i) electing to
consummate any transaction or series of transactions which would result
in a Change of Control of RCC or the Partnership, (ii) electing to
consummate any transaction or series of transactions which would result
in the common shares of RCC or any successor entity of RCC ceasing to
be listed on at least one of the New York Stock Exchange, the American
Stock Exchange or the NASDAQ National Market (or, in each case, a
successor thereto) or (iii) electing not to qualify for taxation as a
real estate investment trust under Section 856 et seq. of the Code. For
the purposes of this Section 4.8(f)(iii), "Change of Control" shall
mean: (i) any sale or other disposition of all or substantially all of
the assets of the Partnership or RCC, as the case may be, to an entity
that is not an Affiliate of RCC; or (ii) any consolidation,
amalgamation, merger, business combination, share exchange,
reorganization or similar transaction involving the Partnership or RCC,
as the case may be, pursuant to which the Partners of the Partnership
or the stockholders of RCC, as the case may be, immediately prior to
the consummation of such transaction will own, directly or indirectly,
less than a majority of the equity interests in the entity surviving
such transaction; provided, however, a Change of Control shall not
include a transaction or series of transactions consummated with the
offeror of an unsolicited "hostile" tender offer for control of RCC or
the Partnership. If the requisite holders of the Series D Preferred
Units fail to approve any of the RCC actions specified in clauses (i),
(ii) or (iii) of the first sentence of this Section 4.8(f)(iii) (each a
"Mandatory Redemption Event") and RCC still effectuates such action,
then the sole remedy of the holders of Series D Preferred Units shall
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be that the Partnership shall immediately redeem all of the Series D
Preferred Units outstanding at a redemption price, payable in cash,
equal to the Capital Account balance of the holders of the Series D
Preferred Units or, if greater, the original Capital Contribution of
such holders plus the current Series D Priority Return, whether or not
declared, to the date of such redemption to the extent not previously
distributed; provided, however, that notwithstanding any provision
hereof to the contrary, the actions specified in clause (i) of the
first sentence of Section 4.8(f)(iii) shall not constitute a Mandatory
Redemption Event if, on or prior to the date of the consummation of
such transaction or transactions, a "nationally recognized statistical
rating organization" (as such term is defined for purposes of Rule
436(g)(2) promulgated under the Securities Act) shall have affirmed the
rating accorded the securities of RCC immediately prior to the public
announcement of such transaction or transactions, or shall have
upgraded such rating (or, if RCC is not the surviving entity in such
transaction or transactions, affirmed that the rating of the securities
of the successor to RCC shall be at least equal to the rating accorded
the securities of RCC immediately prior to the public announcement of
such transaction or transactions). The date of such redemption shall be
the date of the Mandatory Redemption Event."
(g) Section 4.8(g)(i)(A) of the Partnership Agreement is
hereby amended by (x) deleting the phrase "the tenth anniversary of the date of
issuance" from the first sentence thereof and inserting the phrase "January 1,
2014" in lieu thereof, (y) deleting the term 9.125%" from the first sentence
thereof and inserting the term "7.45%" in lieu thereof and (z) deleting the
phrase "the tenth anniversary of the date of issuance" from the second sentence
thereof and inserting the phrase "January 1, 2014" in lieu thereof.
(h) Section 4.8(g)(i)(C) of the Partnership Agreement is
hereby amended to read as follows:
"(C) As a condition to an exchange, each holder of
Series D Preferred Units agrees, subject to any agreements or
undertakings relating to confidentiality to which it may be bound, to
provide representations and covenants reasonably requested by the
General Partner relating to (i) the widely held nature of the interests
in such holder, sufficient to assure the General Partner that the
holder's ownership of stock of the General Partner will not cause any
individual to own in excess of 9.8% of the stock of the General
Partner; and (ii) to the extent such holder can so represent and
covenant without obtaining information from its owners, the holder's
ownership of tenants of the Partnership and its affiliates. Upon the
occurrence of an event giving rise to exchange rights pursuant to
Section 4.8(g)(i)(A), in the event an exchange of all or a portion of
Series D Preferred Units pursuant to Section 4.8(g)(i)(A) would violate
the provisions on ownership limitation of the General Partner set forth
in Article 5 of the Articles of Incorporation, the General Partner
shall give written notice thereof to each holder of record of Series D
Preferred Units, within five (5) Business Days following receipt of the
Series D Exchange Notice, by (i) fax, and (ii) registered mail, postage
prepaid, at the address of each such holder set forth in the records of
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the Partnership. In such event, each holder of Series D Preferred Units
shall be entitled to exchange, pursuant to the provision of Section
4.8(g)(ii), a number of Series D Preferred Units which would comply
with the provisions on the ownership limitation of the General Partner
set forth in such Article 5 of the Articles of Incorporation. Any
Series D Preferred Units not so exchanged are referred to as the
"Series D Excess Units." The Board of Directors shall, within six
months after the date of a Series D Exchange Notice that results in
there being Series D Excess Units, either (in its sole and absolute
discretion, subject to the requirements of Section 607.06401 of the
Florida Statutes (2004) (i) direct the holder of such shares to sell
all shares for cash in an amount equal to the Redemption Price in such
manner as the Board of Directors directs or (ii) cause the General
Partner to redeem such shares for the Redemption Price in cash on such
date within such six month period as the Board of Directors may
determine, by delivering a written notice of redemption to the holders
of the Series D Excess Units. Such written notice of the General
Partner shall state (i) the number of Series D Excess Units held by
such holder, (ii) the redemption price of the Series D Excess Units,
(iii) the date on which such Series D Excess Units shall be redeemed,
which date shall be no later than six months following the receipt of
the Series D Exchange Notice, (iv) the place or places where such
Series D Excess Units are to be surrendered for payment of the Series D
Redemption Price, (v) that distributions on the Series D Excess Units
will cease to accrue on such redemption date, and (vi) that payment of
the Redemption Price will be made upon presentation and surrender of
such Series D Excess Units."
(i) Except as amended by the provisions hereof, the
Partnership Agreement, as previously amended, shall remain in full force and
effect in accordance with its terms; provided, however, that to the extent there
shall be a conflict between the provisions of the Partnership Agreement and this
Amendment, this Amendment shall prevail. The Partnership Agreement, as amended
hereby, is hereby ratified, confirmed and reaffirmed by the undersigned for all
purposes and in all respects. All references in any document to the Partnership
Agreement shall mean the Partnership Agreement, an amended hereby.
2. The parties hereto hereby authorize and direct RCC (and
its board of directors) to amend its Articles of Incorporation in accordance
with the Articles of Amendment to the Articles of Incorporation attached hereto
as Exhibit A. Such amendment to the Articles of Incorporation shall be effective
as of the date hereof and shall be filed with the office of the Secretary of
State for the State of Florida as soon as reasonably practicable and in any
event by November 15, 2004.
3. The Partnership hereby agrees that the obligations of
the Partnership contained in Section 4(d) and Section 4(j) of that certain
Contribution Agreement, dated as of September 29, 1999, by and among Belcrest,
the Partnership and RCC shall be extended through December 31, 2004.
4. As soon as reasonably practicable following the
execution of this Amendment by the Series D Partners, such Series D Partners
shall return all of the certificates representing outstanding Series D Preferred
Units to the Partnership. As soon as reasonably practicable following the
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receipt by the Partnership of such certificates, the Partnership shall reissue
such certificates to reflect the terms of Series D Preferred Units, as amended
hereby.
5. Each of the Series D Preferred Partners makes the
following representations and warranties to the Partnership and RCC as of the
date hereof:
(a) Such Series D Preferred Partner is duly organized and
validly existing under the laws of the state of its organization and has been
duly authorized by all necessary and appropriate action to enter into this
Amendment and to consummate the transactions contemplated herein and the
individuals executing this Amendment on behalf of such Series D Preferred
Partner have been duly authorized by all necessary and appropriate action on
behalf of such Series D Preferred Partner. Assuming the due execution and
delivery by each of the other parties hereto, this Amendment is a valid and
binding obligation of such Series D Preferred Partner, enforceable against such
Series D Preferred Partner in accordance with its terms, except insofar as
enforceability may be affected by bankruptcy, insolvency or similar laws
affecting creditor's rights generally and the availability of any particular
equitable remedy.
(b) Neither the execution nor the delivery of this Amendment
nor the consummation of the transactions contemplated herein nor fulfillment of
or compliance with the terms and conditions hereof (a) conflict with or will
result in a breach of any of the terms, conditions or provisions of (i) the
articles of incorporation, bylaws or other organizational documents of such
Series D Preferred Partner or (ii) any agreement, order, judgment, decree,
arbitration award, statute, regulation or instrument to which such Series D
Preferred Partner is a party or by which it or its assets are bound, or (b)
constitutes or will constitute a breach, violation or default under any of the
foregoing. No consent or approval, authorization, order, regulation or
qualification of any governmental entity or any other person is required for the
execution and delivery of this Amendment and the consummation of the
transactions contemplated hereby by such Series D Preferred Partner.
(c) The Series D Preferred Partners collectively own all of
the Preference Units issued pursuant to the Contribution Agreement and the
Partnership Agreement, as amended.
6. Each of the Partnership and RCC (each a "Regency
Entity") makes the following representations and warranties to the Series D
Preferred Partners as of the date hereof:
(a) Such Regency Entity is duly organized and validly
existing under the laws of the state of its organization and has been duly
authorized by all necessary and appropriate action to enter into this Amendment
and to consummate the transactions contemplated herein and the individuals
executing this Amendment on behalf of such Regency Entity have been duly
authorized by all necessary and appropriate action on behalf of such Regency
Entity. Assuming the due execution and delivery hereof by each of the Series D
Preferred Partners, this Amendment is a valid and binding obligation of such
Regency Entity, enforceable against such Regency Entity in accordance with its
terms (except, with respect to RCC, such enforceability is limited to the terms
of Sections 1(f) and 1(g) hereof), except insofar as enforceability may be
affected by bankruptcy, insolvency or similar laws affecting creditor's rights
generally and the availability of any particular equitable remedy.
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(b) Neither the execution nor the delivery of this Amendment
nor the consummation of the transactions contemplated herein nor fulfillment of
or compliance with the terms and conditions hereof (a) conflict with or will
result in a breach of any of the terms, conditions or provisions of (i) the
articles of incorporation, bylaws or other organizational documents of such
Regency Entity or (ii) any agreement, order, judgment, decree, arbitration
award, statute, regulation or instrument to which such Regency Entity is a party
or by which it or its assets are bound, or (b) constitutes or will constitute a
breach, violation or default under any of the foregoing. No consent or approval,
authorization, order, regulation or qualification of any governmental entity or
any other person is required for the execution and delivery of this Amendment
and the consummation of the transactions contemplated hereby by such Regency
Entity.
7. The parties agree to cooperate with either other in
effectuating the transactions described herein and agree to execute such further
documents and instruments as may reasonably be required to effectuate the
transactions described herein.
8. This Amendment shall be binding upon and shall inure to
the benefit of the parties hereto, their respective legal representatives,
successors and assigns.
9. This Amendment may be executed in counterparts, all of
which together shall constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart.
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first written above.
GENERAL PARTNER:
REGENCY CENTERS CORPORATION
(formerly known as Regency Realty
Corporation)
By: /s/ Lisa Palmer
--------------------------------------
Name: Lisa Palmer
Title: Senior Vice President
SERIES D PREFERRED PARTNERS
BELCREST REALTY CORPORATION
By: /s/ William R. Cross
--------------------------------------
Name: William R. Cross
Title: Vice President
BELPORT REALTY CORPORATION
By: /s/ William R. Cross
--------------------------------------
Name: William R. Cross
Title: Vice President
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EXHIBIT A
8
AMENDMENT TO ARTICLES OF INCORPORATION OF
REGENCY CENTERS CORPORATION
AMENDING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 500,000 SHARES OF
SERIES D CUMULATIVE REDEEMABLE PREFERRED STOCK
Pursuant to Section 607.1006 of the Florida Business
Corporation Act ("FBCA"), Regency Centers Corporation, a Florida corporation
formerly known as Regency Realty Corporation ( the "Corporation"), does hereby
certify that:
WHEREAS, the Board of Directors of the Corporation designated
500,000 shares of its authorized but unissued Preferred Stock, par value $.01
per share, as its 9.125% Series D Cumulative Redeemable Preferred Stock (the
"Series D Preferred Stock") pursuant to Articles of Amendment adopted in
accordance with Section 607.0602 of the FBCA, filed with the Florida Department
of State on October 1, 1999 (the "Designation");
WHEREAS, the Corporation has committed to issue shares of
Series D Preferred Stock to the holders of Series D preferred units (the "Series
D Preferred Partners") in the Corporation's affiliate, Regency Centers, L.P., a
Delaware limited partnership (the "Partnership"), but no shares of Series D
Preferred Stock have yet been issued;
WHEREAS, the Partnership and the Series D Preferred Partners
have agreed to amend the Designation to provide that, inter alia, dividends
shall accrue at the rate per annum of 7.45% rather than 9.125% on shares of
Series D Preferred Stock, when issued, and that the holders of the Series D
Preferred Stock shall have certain additional voting rights as set forth herein;
WHEREAS, the Board of Directors of the Corporation adopted
this amendment on October 27, 2004 without shareholder action;
WHEREAS, shareholder approval of this amendment is not
required;
NOW, THEREFORE, ARTICLE THIRD of the Designation is hereby
amended as follows (all capitalized terms not otherwise defined herein shall
have the meanings given to them in the Designation):
1. Distribution Rate
-----------------
Section 3(a) of the Designation is hereby amended to change
the annual distribution rate from 9.125% to 7.45%.
In addition, all references throughout the Designation to
9.125% are hereby changed to 7.45%, and the Series D Preferred Stock shall be
known as the "7.45% Series D Cumulative Redeemable Preferred Stock."
2. Voting
------
A new Section 6(d) is hereby added to the Designation, which
reads in full as follows:
"(d) Certain Additional Voting Rights.
Notwithstanding anything herein to the contrary, so long as
any shares of Series D Preferred Stock remain outstanding, the
Corporation shall solicit the affirmative vote of the holders
of at least two-thirds (2/3) of the Series D Preferred Stock
outstanding at the time, prior to:
(i) electing to consummate any transaction or series
of transactions which would result in a Change of Control of
the Corporation,
(ii) electing to consummate any transaction or series
of transactions which would result in the common shares of the
Corporation or any successor entity of the Corporation ceasing
to be listed on at least one of the New York Stock Exchange,
the American Stock Exchange or the NASDAQ National Market (or,
in each case, a successor thereto), or
(iii) electing not to qualify for taxation as a real
estate investment trust under Section 856 et seq. of the
Internal Revenue Code.
For the purposes of this Section 6(d) "Change of Control"
shall mean: (x) any sale or other disposition of all or
substantially all of the Corporation to an entity that is not
an Affiliate (as defined in Rule 12b-2 under the Securities
Exchange Act of 1934) of the Corporation; or (y) any
consolidation, amalgamation, merger, business combination,
share exchange, reorganization or similar transaction
involving the Corporation pursuant to which the stockholders
of the Corporation immediately prior to the consummation of
such transaction will own, directly or indirectly, less than a
majority of the equity interest in the entity surviving such
transaction; provided, however, a Change of Control shall not
include a transaction or series of transactions consummated
with the offeror of an unsolicited "hostile" tender offer for
control of the Corporation. If the requisite holders of the
Series D Preferred Stock fail to approve any of the
Corporation's actions specified in clauses (i), (ii) or (iii)
of the first sentence of this Section 6(d) (each a "Mandatory
Redemption Event") and the Corporation still effectuates such
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action, then the sole remedy of the holders of Series D
Preferred Stock shall be that the Corporation shall
immediately redeem all of the Series D Preferred Stock
outstanding at a redemption price, payable in cash, equal to
$100 per share of Series D Preferred Stock plus accumulative
and unpaid distributions, whether or not declared, to the date
of such redemption; provided, however, that notwithstanding
any provision hereof to the contrary, the actions specified in
clause (i) of the first sentence of this Section 6(d) shall
not constitute a Mandatory Redemption Event if, on or prior to
the date of the consummation of such transaction or
transactions, a "nationally recognized statistical rating
organization" (as such term is defined for purposes of Rule
436(g)(2) promulgated under the Securities Act of 1933, as
amended) shall have affirmed the rating accorded the
securities of the Corporation immediately prior to the public
announcement of such transaction or transactions, or shall
have upgraded such rating (or, if the Corporation is not the
surviving entity in such transaction or transactions, affirmed
that the rating of the securities of the successor to the
Corporation shall be at least equal to the rating accorded the
securities of the Corporation immediately prior to the public
announcement of such transaction or transactions). The date of
such redemption shall be the date of the Mandatory Redemption
Event."
[Signature appears on following page.]
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IN WITNESS WHEREOF, the undersigned Senior Vice President of
the Corporation has executed this amendment this 12th day of November, 2004.
/s/ Lisa Palmer
----------------------------------------
Lisa Palmer, Senior Vice President
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