A-8
ATL01/10402478v5 A&B Draft 02/19/99
EXHIBIT A
FORM OF ASSIGNMENT AND Acceptance AGREEMENT
THIS ASSIGNMENT AND Acceptance AGREEMENT dated as of ___________, 199__
(the "Agreement") by and among _________________________ (the "Assignor"),
_________________________ (the "Assignee"), REGENCY CENTERS, L.P. (the
"Borrower"), REGENCY REALTY CORPORATION (the "Parent") and Wells Fargo BANK,
NATIONAL ASSOCIATION, as Agent (the "Agent").
WHEREAS, the Assignor is a Lender under that certain Amended and
Restated Credit Agreement dated as of February 26 1999 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
by and among the Borrower, the Parent, the financial institutions party thereto
and their assignees under Section 12.8 thereof, the Agent, and the Syndication
Agent, Documentation Agent and Managing Agents named therein;
WHEREAS, the Assignor desires to assign to the Assignee all or a
portion of the Assignor's Commitment under the Credit Agreement, all on the
terms and conditions set forth herein;
WHEREAS, the Borrower and the Agent consent to such assignment on the
terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
Section 1. Assignment.
(a) Subject to the terms and conditions of this Agreement and in
consideration of the payment to be made by the Assignee to the Assignor pursuant
to Section 2 of this Agreement, effective as of ____________, 199__ (the
"Assignment Date") the Assignor hereby irrevocably sells, transfers and assigns
to the Assignee, without recourse, a $__________ interest (such interest being
the "Assigned Commitment") in and to the Assignor's Commitment and all of the
other rights and obligations of the Assignor under the Credit Agreement, such
Assignor's Revolving Note and the other Loan Documents representing ______% in
respect of the aggregate amount of all Lenders' Commitments, including without
limitation, a principal amount of outstanding Revolving Loans equal to
$_________, all voting rights of the Assignor associated with the Assigned
Commitment, all rights to receive interest on such amount of Loans and all
commitment and other fees with respect to the Assigned Commitment and other
rights of the Assignor under the Credit Agreement and the other Loan Documents
with respect to the Assigned Commitment, all as if the Assignee were an original
Lender under and signatory to the Credit Agreement having a Commitment equal to
such amount of the Assigned Commitment. The Assignee, subject to the terms and
conditions hereof, hereby assumes all obligations of the Assignor with respect
to the Assigned Commitment as if the Assignee were an original Lender under and
signatory to the Credit Agreement having a Commitment equal to the Assigned
Commitment, which obligations shall include, but shall not be limited to, the
obligation of the Assignor to make Revolving Loans to the Borrower with respect
to the Assigned Commitment and the obligation to indemnify the Agent as provided
therein (the foregoing enumerated obligations, together with all other similar
obligations more particularly set forth in the Credit Agreement and the other
Loan Documents, shall be referred to hereinafter, collectively, as the "Assigned
Obligations"). [In addition, the Assignor hereby irrevocably sells, transfers
and assigns to the Assignee, without recourse, a $____________ interest in and
to the Assignor's Bid Rate Note, including without limitation, a principal
amount of outstanding Bid Rate Loans owing to the Assignor in an aggregate
amount equal to $__________, all rights to receive interest on such amount of
Bid Rate Loans and other rights of the Assignor under the Credit Agreement and
the other Loan Documents with respect to such Bid Rate Loans, all as if the
Assignee had originally made such amount of Bid Rate Loans to the Borrower. The
obligations assigned pursuant to the immediately preceding sentence shall
constitute Assigned Obligations hereunder.] The Assignor shall have no further
duties or obligations with respect to, and shall have no further interest in,
the Assigned Obligations or the Assigned Commitment from and after the
Assignment Date.
(b) The assignment by the Assignor to the Assignee hereunder is without
recourse to the Assignor. The Assignee makes and confirms to the Agent, the
Assignor, and the other Lenders all of the representations, warranties and
covenants of a Lender under Article XI of the Credit Agreement. Not in
limitation of the foregoing, the Assignee acknowledges and agrees that, except
as set forth in Section 4 below, the Assignor is making no representations or
warranties with respect to, and the Assignee hereby releases and discharges the
Assignor for any responsibility or liability for: (i) the present or future
solvency or financial condition of the Borrower, (ii) any representations,
warranties, statements or information made or furnished by the Borrower in
connection with the Credit Agreement or otherwise, (iii) the validity, efficacy,
sufficiency, or enforceability of the Credit Agreement, any Loan Document or any
other document or instrument executed in connection therewith, or the
collectibility of the Assigned Obligations, (iv) the perfection, priority or
validity of any Lien with respect to any collateral at any time securing the
Obligations or the Assigned Obligations under the Notes or the Credit Agreement
and (v) the performance or failure to perform by the Borrower of any obligation
under the Credit Agreement or any document or instrument executed in connection
therewith. Further, the Assignee acknowledges that it has, independently and
without reliance upon the Agent, or on any affiliate or subsidiary thereof, or
any other Lender and based on the financial statements supplied by the Borrower
and such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to become a Lender under the Credit Agreement.
The Assignee also acknowledges that it will, independently and without reliance
upon the Agent or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement or any Note
or pursuant to any other obligation. The Agent shall have no duty or
responsibility, either initially or on a continuing basis, to provide the
Assignee with any credit or other information with respect to the Borrower or to
notify the undersigned of any Event of Default except as expressly provided in
the Credit Agreement. The Assignee has not relied on the Agent as to any legal
or factual matter in connection therewith or in connection with the transactions
contemplated thereunder.
Section 2. Payment by Assignee. In consideration of the assignment made
pursuant to Section 1 of this Agreement, the Assignee agrees to pay to the
Assignor on the Assignment Date, an amount equal to $_________ representing the
aggregate principal amount outstanding of the Revolving Loans owing to the
Assignor under the Credit Agreement and the other Loan Documents being assigned
hereby. [Further, the Assignee agrees to pay to the Assignor on the Assignment
Date, an amount equal to $____________ representing the aggregate principal
amount outstanding of the Bid Rate Loans owing to the Assignor under the Credit
Agreement and the other Loan Documents being assigned hereby.]
Section 3. Payments by Assignor. The Assignor agrees to pay to the
Agent on the Assignment Date the administration fee, if any, payable under the
applicable provisions of the Credit Agreement.
Section 4. Representations and Warranties of Assignor. The Assignor
hereby represents and warrants to the Assignee that (a) as of the Assignment
Date (i) the Assignor is a Lender under the Credit Agreement having a Commitment
under the Credit Agreement immediately prior to the Assignment Date, equal to
$____________ and that the Assignor is not in default of its obligations under
the Credit Agreement; and (ii) the outstanding balance of Revolving Loans owing
to the Assignor [and the outstanding principal balance of Bid Rate Loans owing
to the Assignor] (without reduction by any assignments thereof which have not
yet become effective) is $____________[and $__________ , respectively]; and (b)
it is the legal and beneficial owner of the Assigned Commitment which is free
and clear of any adverse claim created by the Assignor.
Section 5. Representations, Warranties and Agreements of Assignee. The
Assignee (a) represents and warrants that it is legally authorized to enter into
this Agreement; (b) it is an "accredited investor" (as such term is used in
Regulation D of the Securities Act); (c) confirms that it has received a copy of
the Credit Agreement, together with copies of the most recent financial
statements delivered pursuant thereto and such other documents and information
(including without limitation the Loan Documents) as it has deemed appropriate
to make its own credit analysis and decision to enter into this Agreement; (d)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under the Loan Documents as are delegated to the Agent
by the terms thereof together with such powers as are reasonably incidental
thereto; (e) agrees that it will become a party to and shall be bound by the
Credit Agreement, the other Loan Documents to which the other Lenders are a
party on the Assignment Date and will perform in accordance therewith all of the
obligations which are required to be performed by it as a Lender.
Section 6. Recording and Acknowledgment by the Agent. Following the
execution of this Agreement, the Assignor will deliver to the Agent (a) a duly
executed copy of this Agreement for acknowledgment and recording by the Agent
and (b) the Assignor's Revolving Note [and Bid Rate Note]. The Borrower agrees
to exchange such Note[s] for [a] new Note[s] as provided in Section 12.8(c) of
the Credit Agreement. Upon such acknowledgment and recording, from and after the
Assignment Date, the Agent shall make all payments in respect of the interest
assigned hereby (including payments of principal, interest, fees and other
amounts) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement for periods prior to the
Assignment Date directly between themselves. The Agent may unilaterally amend
Annex I to the Credit Agreement to reflect the assignment effected hereby.
Section 7. Addresses. The Assignee specifies as its address for
notices and its Lending Office for all Loans, the offices set forth below:
Notice Address:
Telephone No.:
Telecopy No.:
Domestic Lending Office:
Telephone No.:
Telecopy No.:
LIBOR Lending Office:
Telephone No.:
Telecopy No.:
Section 8. Payment Instructions. All payments to be made to the
Assignee under this Agreement by the Assignor, and all payments to be made to
the Assignee under the Credit Agreement, shall be made as provided in the Credit
Agreement in accordance with the following instructions:
Section 9. Effectiveness of Assignment. This Agreement, and the
assignment and assumption contemplated herein, shall not be effective until (a)
this Agreement is executed and delivered by each of the Assignor, the Assignee,
the Borrower and the Agent and (b) the payment to the Assignor of the amounts
owing by the Assignee pursuant to Section 2 hereof and (c) the payment to the
Agent of the amounts owing by the Assignor pursuant to Section 3 hereof. Upon
recording and acknowledgment of this Agreement by the Agent, from and after the
Assignment Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Agreement, have the rights and obligations of a
Lender thereunder and (ii) the Assignor shall, to the extent provided in this
Agreement, relinquish its rights and be released from its obligations under the
Credit Agreement; provided, however, that if the Assignor does not assign its
entire interest under the Loan Documents, it shall remain a Lender entitled to
all of the benefits and subject to all of the obligations thereunder with
respect to its Commitment.
Section 10. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
Section 11. Counterparts. This Agreement may be executed in any number
of counterparts each of which, when taken together, shall constitute one and the
same agreement.
Section 12. Headings. Section headings have been inserted herein for
convenience only and shall not be construed to be a part hereof.
Section 13. Amendments; Waivers. This Agreement may not be amended,
changed, waived or modified except by a writing executed by the Assignee and the
Assignor.
Section 14. Entire Agreement. This Agreement embodies the entire
agreement between the Assignor and the Assignee with respect to the subject
matter hereof and supersedes all other prior arrangements and understandings
relating to the subject matter hereof.
Section 15. Binding Effect.This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
Section 16. Definitions. Terms not otherwise defined herein are used
herein with the respective meanings given them in the Credit Agreement.
[Include this Section only if the Borrower's consent is required under
Section 12.8.(c) of the Credit Agreement]Section 17. Agreements of the Borrower.
The Borrower hereby agrees that the Assignee shall be a Lender under the Credit
Agreement having a Commitment equal to the Assigned Commitment. The Borrower
agrees that the Assignee shall have all of the rights and remedies of a Lender
under the Credit Agreement and the other Loan Documents as if the Assignee were
an original Lender under and signatory to the Credit Agreement, including, but
not limited to, the right of a Lender to receive payments of principal and
interest with respect to the Assigned Obligations, if any, and to the Revolving
Loans made by the Lenders after the date hereof and to receive the commitment
and other fees payable to the Lenders as provided in the Credit Agreement.
Further, the Assignee shall be entitled to the indemnification provisions from
the Borrower in favor of the Lenders as provided in the Credit Agreement and the
other Loan Documents. The Borrower further agrees, upon the execution and
delivery of this Agreement, to execute in favor of the Assignee a Revolving Note
in an initial amount equal to the Assigned Commitment [and a Bid Rate Note].
Further, the Borrower agrees that, upon the execution and delivery of this
Agreement, the Borrower shall owe the Assigned Obligations to the Assignee as if
the Assignee were the Lender originally making such Loans and entering into such
other obligations.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Assignment and Acceptance Agreement as of the date and year first written above.
ASSIGNOR:
[Name of Assignor]
By:
Title:
ASSIGNEE:
[Name of Assignee]
By:
Title:
Agreed and Consented to as of the date first written above.
[Include signature of the Borrower only
if required under Section 12.8.(c) of the
Credit Agreement]
BORROWER:
Regency Centers, L.P.
By: Regency Realty Corporation, its sole general partner
By:
Title:
PARENT:
REGENCY REALTY CORPORATION
By:
Title:
Accepted as of the date first written above.
AGENT:
Wells Fargo BANK, NATIONAL ASSOCIATION, as Agent
By:
Title:
B-5
ATL01/10402478v5 A&B Draft 02/19/99
EXHIBIT B
FORM OF designation AGREEMENT
THIS designation AGREEMENT dated as of ___________, _____ (the
"Agreement") by and among _________________________ (the "Designating Lender"),
_________________________ (the "Designated Lender") and
Wells Fargo Bank, National Association, as Agent (the "Agent").
WHEREAS, the Designating Lender is a Lender under that certain Amended
and Restated Credit Agreement dated as of February 26, 1999 (as amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"), by and among Regency Centers, L.P., a Delaware limited partnership
(the "Borrower"), Regency Realty Corporation, the financial institutions party
thereto and their assignees under Section 12.8 thereof (the "Lenders"), Wells
Fargo Bank, National Association, as Agent, and the Syndication Agent,
Documentation Agent and Managing Agents named therein;
WHEREAS, pursuant to Section 12.8(d), the Designating Lender desires to
designate the Designated Lender as its "Designated Lender" under and as defined
in the Credit Agreement; and
WHEREAS, the Agent consents to such designation on the terms and
conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
Section 1. Designation. Subject to the terms and conditions of this
Agreement, the Designating Lender hereby designates the Designated Lender, and
the Designated Lender hereby accepts such designation, to have a right to make
Bid Rate Loans on behalf of the Designating Lender pursuant to Section 2.2. of
the Credit Agreement. Any assignment by the Designating Lender to the Designated
Lender of rights to make a Bid Rate Loan shall only be effective at the time
such Bid Rate Loan is funded by the Designated Lender. The Designated Lender,
subject to the terms and conditions hereof, hereby agrees to make such accepted
Bid Rate Loans and to perform such other obligations as may be required of it as
a Designated Lender under the Credit Agreement.
Section 2. Designating Lender Not Discharged. Notwithstanding the
designation of the Designated Lender hereunder, the Designating Lender shall be
and remain obligated to the Borrower, the Agent and the Lenders for each and
every of the obligations of the Designating Lender and its related Designated
Lender with respect to the Credit Agreement and the other Loan Documents,
including, without limitation, any indemnification obligations under Section
11.7 and any sums otherwise payable to the Borrower by the Designated Lender.
Section 3. No Representations by Designating Lender. The Designating
Lender makes no representation or warranty and, except as set forth in Section 8
below, assumes no responsibility pursuant to this Agreement with respect to (a)
any statements, warranties or representations made in or in connection with any
Loan Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of any Loan Document or any other instrument and document
furnished pursuant thereto and (b) the financial condition of the Borrower or
any of its Subsidiaries or the performance or observance by the Borrower of any
of its obligations under any Loan Document or any other instrument or document
furnished pursuant thereto.
Section 4. Representations and Covenants of Designated Lender. The
Designated Lender makes and confirms to the Agent, the Designating Lender, and
the other Lenders all of the representations, warranties and covenants of a
Lender under Article XI of the Credit Agreement. Not in limitation of the
foregoing, the Designated Lender (a) represents and warrants that it (i) is
legally authorized to enter into this Agreement; (ii) is an "accredited
investor" (as such term is used in Regulation D of the Securities Act) and (iii)
meets the requirements of a "Designated Lender" contained in the definition of
such term contained in the Credit Agreement; (b) confirms that it has received a
copy of the Credit Agreement, together with copies of the most recent financial
statements delivered pursuant thereto and such other documents and information
(including without limitation the Loan Documents) as it has deemed appropriate
to make its own credit analysis and decision to enter into this Agreement; (c)
confirms that it has, independently and without reliance upon the Agent, or on
any affiliate thereof, or any other Lender and based on such financial
statements and such other documents and information, made its own credit
analysis and decision to become a Designated Lender under the Credit Agreement;
(d) appoints and authorizes the Agent to take such action as contractual
representative on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Agent by the terms thereof together with such
powers as are reasonably incidental thereto; and (e) agrees that it will become
a party to and shall be bound by the Credit Agreement, the other Loan Documents
to which the other Lenders are a party on the Effective Date (as defined below)
and will perform in accordance therewith all of the obligations which are
required to be performed by it as a Designated Lender. The Designated Lender
also acknowledges that it will, independently and without reliance upon the
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement or any Note or pursuant
to any other obligation. The Designated Lender acknowledges and agrees that
except as expressly required under the Credit Agreement, the Agent shall have no
duty or responsibility whatsoever, either initially or on a continuing basis, to
provide the Designated Lender with any credit or other information with respect
to the Borrower or any other Loan Party or to notify the Designated Lender of
any Default or Event of Default.
Section 5. Appointment of Designating Lender as Attorney-In-Fact. The
Designated Lender hereby appoints the Designating Lender as the Designated
Lender's agent and attorney-in-fact, and grants to the Designating Lender an
irrevocable power of attorney, to receive any and all payments to be made for
the benefit of the Designated Lender under the Credit Agreement, to deliver and
receive all notices and other communications under the Credit Agreement and
other Loan Documents and to exercise on the Designated Lender's behalf all
rights to vote and to grant and make approvals, waivers, consents of amendments
to or under the Credit Agreement or other Loan Documents. Any document executed
by the Designating Lender on the Designated Lender's behalf in connection with
the Credit Agreement or other Loan Documents shall be binding on the Designated
Lender. The Borrower, each Agent and each of the Lenders may rely on and are
beneficiaries of the preceding provisions.
Section 6. Acceptance by the Agent. Following the execution of this
Agreement by the Designating Lender and the Designated Lender, the Designating
Lender will (i) deliver to the Agent a duly executed original of this Agreement
for acceptance by the Agent and (ii) pay to the Agent the fee, if any, payable
under the applicable provisions of the Credit Agreement whereupon this Agreement
shall become effective as of the date of such acceptance or such other date as
may be specified on the signature page hereof (the "Effective Date").
Section 7. Effect of Designation. Upon such acceptance and recording by
the Agent, as of the Effective Date, the Designated Lender shall be a party to
the Credit Agreement with a right to make Bid Rate Loans as a Lender pursuant to
Section 2.2. of the Credit Agreement and the rights and obligations of a Lender
related thereto; provided, however, that the Designated Lender shall not be
required to make payments with respect to such obligations except to the extent
of excess cash flow of such Designated Lender which is not otherwise required to
repay obligations of such Designated Lender which are then due and payable.
Notwithstanding the foregoing, the Designating Lender, as Agent for the
Designated Lender, shall be and remain obligated to the Borrower, the Agent and
the Lenders for each and every of the obligations of the Designated Lender and
its Designating Lender with respect to the Credit Agreement.
Section 8. Indemnification of Designated Lender. The Designating Lender
unconditionally agrees to pay or reimburse the Designated Lender and save the
Designated Lender harmless against all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed or asserted by any of the
parties to the Loan Documents against the Designated Lender, in its capacity as
such, in any way relating to or arising out of this Agreement or any other Loan
Documents or any action taken or omitted by the Designated Lender hereunder or
thereunder, provided that the Designating Lender shall not be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements if the same results from the
Designated Lender's gross negligence or willful misconduct.
Section 9. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
Section 10. Counterparts. This Agreement may be executed in any number
of counterparts each of which, when taken together, shall constitute one and the
same agreement.
Section 11. Headings. Section headings have been inserted herein for
convenience only and shall not be construed to be a part hereof.
Section 12. Amendments; Waivers. This Agreement may not be amended,
changed, waived or modified except by a writing executed by all parties hereto.
Section 13. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
Section 14. Definitions. Terms not otherwise defined herein are used
herein with the respective meanings given them in the Credit Agreement.
[Signatures on Following Page]
IN WITNESS WHEREOF, the parties hereto have duly executed this
Designation Agreement as of the date and year first written above.
Effective Date:
DESIGNATING LENDER:
[Name of Designating Lender]
Name:
Title:
Designated Lender:
[Name of Designated Lender]
By:
Name:
Title:
Accepted as of the date first written above.
AGENT:
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Agent
By:
Name:
Title:
EXHIBIT C
Form of REVOLVING NOTE
$______________ _________, 199_
FOR VALUE RECEIVED, the undersigned, REGENCY CENTERS, L.P., a Delaware
limited partnership (the "Borrower") hereby unconditionally promises to pay to
the order of ___________________________ (the "Lender"), in care of Wells Fargo
Bank, National Association, as Agent (the "Agent"), to Wells Fargo Bank,
National Association, 111 Sutter Street, 8th Floor, San Francisco, California
94104 or at such other address as may be specified by the Agent to the Borrower,
the principal sum of ___________________ AND ___/100 DOLLARS ($_____________),
or such lesser amount as may be the then outstanding and unpaid balance of all
Revolving Loans or the Term Loan made by the Lender to the Borrower pursuant to,
and in accordance with the terms of, the Credit Agreement.
The Borrower further agrees to pay interest at said office, in like
money, on the unpaid principal amount owing hereunder from time to time on the
dates and at the rates and at the times specified in the Credit Agreement.
This Revolving Note is one of the "Revolving Notes" referred to in that
certain Amended and Restated Credit Agreement dated as of February 26, 1999 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among the Borrower, Regency Realty Corporation, the
financial institutions party thereto and their assignees under Section 12.8
thereof (the "Lenders"), the Agent, and the Syndication Agent, Documentation
Agent and Managing Agents named therein, and is subject to, and entitled to, all
provisions and benefits thereof. Capitalized terms used herein and not defined
herein shall have the respective meanings given to such terms in the Credit
Agreement. The Credit Agreement, among other things, (a) provides for the making
of Revolving Loans by the Lender to the Borrower from time to time in an
aggregate amount not to exceed at any time outstanding the Dollar amount first
above mentioned, (b) permits the prepayment of the Loans by the Borrower subject
to certain terms and conditions and (c) provides for the acceleration of the
Revolving Loans and Term Loans upon the occurrence of certain specified events.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
[The following text is to be included in only those Revolving Notes
executed in favor of the Lenders who were a party to the Existing Credit
Agreement at the time of the amendment and restatement thereof --This Note
amends and restates that certain Note dated ___________, 199_, in the original
principal amount of $___________ executed and delivered by the Borrower, payable
to the order of the Lender. THIS NOTE IS NOT INTENDED TO BE, AND SHALL NOT BE
CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS OWING UNDER OR IN
CONNECTION WITH SUCH OTHER NOTE.]
Time is of the essence for this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF GEORGIA.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Note under seal as of the date written above.
REGENCY CENTERS, L.P.
By: Regency Realty Corporation, its sole general partner
By:
Name:
Title:
[CORPORATE SEAL]
STATE OF GEORGIA
COUNTY OF
BEFORE ME, a Notary Public in and for said County, personally appeared
_____________________, known to me to be a person who, as
____________________________ of Regency Realty Corporation, as the general
partner of Regency Centers, L.P., the entity which executed the foregoing Note,
signed the same, and acknowledged to me that he did so sign said instrument in
the name and upon behalf of said corporation as an officer of said corporation.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name, and affixed
my official seal, this ____ day of _______________, ___________.
Notary Public
My Commission Expires:
EXHIBIT D
FORM OF BID RATE NOTE
____________, 19__
FOR VALUE RECEIVED, the undersigned, REGENCY CENTERS, L.P., a Delaware
limited partnership (the "Borrower"), hereby promises to pay to the order of
________________ (the "Lender"), in care of Wells Fargo Bank, National
Association, as Agent (the "Agent"), to Wells Fargo Bank, National Association,
111 Sutter Street, 8th Floor, San Francisco, California 94104, or at such other
address as may be specified by the Agent to the Borrower, the aggregate unpaid
principal amount of Bid Rate Loans made by the Lender to the Borrower under the
Credit Agreement, on the dates and in the principal amounts provided in the
Credit Agreement, and to pay interest on the unpaid principal amount of each
such Bid Rate Loan, at such office at the rates and on the dates provided in the
Credit Agreement.
The date, amount, interest rate and maturity date of each Bid Rate Loan
made by the Lender to the Borrower, and each payment made on account of the
principal thereof, shall be recorded by the Lender on its books and, prior to
any transfer of this Note, endorsed by the Lender on the schedule attached
hereto or any continuation thereof, provided that the failure of the Lender to
make any such recordation or endorsement shall not affect the obligations of the
Borrower to make a payment when due of any amount owing under the Credit
Agreement or hereunder in respect of the Bid Rate Loans made by the Lender.
This Note is one of the Bid Rate Notes referred to in the Amended and
Restated Credit Agreement dated as of February 26, 1999 (as amended, restated,
supplemented or otherwise modified from time to time in accordance with its
terms, the "Credit Agreement") among the Borrower, Regency Realty Corporation,
the financial institutions initially party thereto and their assignees under
Section 12.8. thereof, Wells Fargo Bank, National Association, as Agent, and the
Syndication Agent, Documentation Agent and Managing Agents named therein, and
evidences Bid Rate Loans made by the Lender thereunder. Terms used but not
otherwise defined in this Note have the respective meanings assigned to them in
the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Bid Rate
Loans upon the terms and conditions specified therein.
Except as permitted by Section 12.8. of the Credit Agreement, this Note
may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance with, the
laws of the State of GEORGIA.
The Borrower hereby waives presentment for payment, demand, notice of
demand, notice of non-payment, protest, notice of protest and all other similar
notices.
[The following text is to be included in only those Bid Rate Notes
executed in favor of the Lenders who were a party to the Existing Credit
Agreement at the time of the amendment and restatement thereof --This Note
amends and restates that certain Bid Rate Note dated ___________, 199_, executed
and delivered by the Borrower, payable to the order of the Lender. THIS NOTE IS
NOT INTENDED TO BE, AND SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE
OBLIGATIONS OWING UNDER OR IN CONNECTION WITH SUCH OTHER NOTE.]
Time is of the essence for this Note.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Bid
Rate Note under seal as of the date first written above.
REGENCY CENTERS, L.P.
By: Regency Realty Corporation,
its sole general partner
By:
Name:
Title:
[CORPORATE SEAL]
STATE OF GEORGIA
COUNTY OF
BEFORE ME, a Notary Public in and for said County, personally appeared
, known to me to be a person who, as ____________________________ of Regency
Realty Corporation, as the general partner of Regency Centers, L.P., the entity
which executed the foregoing Note, signed the same, and acknowledged to me that
he did so sign said instrument in the name and upon behalf of said corporation
as an officer of said corporation.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name, and affixed
my official seal, this ____ day of __________________, __________.
Notary Public
My Commission Expires:
SCHEDULE OF BID RATE LOANS
This Note evidences Bid Rate Loans made under the within-described
Credit Agreement to the Borrower, on the dates, in the principal amounts,
bearing interest at the rates and maturing on the dates set forth below, subject
to the payments and prepayments of principal set forth below:
Principal Maturity Amount Unpaid
Date of Amount of Interest Date of Paid or Principal Notation
Loan Loan Rate Loan Prepaid Amount Made By
- ---- ---- ---- ---- ------- ------ -------
EXHIBIT E
FORM OF SWINGLINE NOTE
$30,000,000 February 26, 1999
FOR VALUE RECEIVED, the undersigned, regency centers, l.p. (the
"Borrower"), hereby promises to pay to the order of WELLS FARGO BANK, NATIONAL
ASSOCIATION (the "Swingline Lender") to its address at 111 Sutter Street, 8th
Floor, San Francisco, California 94104, or at such other address as may be
specified by the Swingline Lender to the Borrower, the principal sum of THIRTY
MILLION AND NO/100 DOLLARS ($30,000,000) (or such lesser amount as shall equal
the aggregate unpaid principal amount of Swingline Loans made by the Swingline
Lender to the Borrower under the Credit Agreement), on the dates and in the
principal amounts provided in the Credit Agreement, and to pay interest on the
unpaid principal amount owing hereunder, at the rates and on the dates provided
in the Credit Agreement.
The date, amount of each Swingline Loan, and each payment made on
account of the principal thereof, shall be recorded by the Swingline Lender on
its books and, prior to any transfer of this Note, endorsed by the Swingline
Lender on the schedule attached hereto or any continuation thereof, provided
that the failure of the Swingline Lender to made any such recordation or
endorsement shall not affect the obligations of the Borrower to make a payment
when due of any amount owing under the Credit Agreement or hereunder in respect
of the Swingline Loans.
This Note is the Swingline Note referred to in the Amended and Restated
Credit Agreement dated as of February 26, 1999 (as amended, restated,
supplemented or otherwise modified from time to time in accordance with its
terms, the "Credit Agreement") among the Borrower, Regency Realty Corporation,
the financial institutions initially party thereto and their assignees under
Section 12.8 thereof, Wells Fargo Bank, National Association, as Agent, and the
Syndication Agent, Documentation Agent and Managing Agents named therein, and
evidences Swingline Loans made thereunder. Terms used but not otherwise defined
in this Note have the respective meanings assigned to them in the Credit
Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Swingline
Loans upon the terms and conditions specified therein.
This Note shall be governed by, and construed in accordance with, the
laws of the State of GEORGIA.
The Borrower hereby waives presentment for payment, demand, notice of
demand, notice of non-payment, protest, notice of protest and all other similar
notices.
This Note amends and restates that certain Swingline Note dated March
27, 1998, in the original principal amount of $20,000,000 executed and delivered
by the Borrower, payable to the order of the Swingline Lender. THIS NOTE IS NOT
INTENDED TO BE, AND SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE
OBLIGATIONS OWING UNDER OR IN CONNECTION WITH SUCH OTHER SWINGLINE NOTE.
Time is of the essence for this Note.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Swingline Note under seal as of the date first written above.
Regency Centers, L.P.
By: Regency Realty Corporation,
its sole general partner
By:
Name:
Title:
[CORPORATE SEAL]
STATE OF GEORGIA
COUNTY OF
BEFORE ME, a Notary Public in and for said County, personally appeared
, known to me to be a person who, as ____________________________ of Regency
Realty Corporation, as the general partner of Regency Centers, L.P., the entity
which executed the foregoing Note, signed the same, and acknowledged to me that
he did so sign said instrument in the name and upon behalf of said corporation
as an officer of said corporation.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name, and affixed
my official seal, this ____ day of __________________, ____________.
Notary Public
My Commission Expires:
SCHEDULE OF SWINGLINE LOANS
This Note evidences Swingline Loans made under the within-described
Credit Agreement to the Borrower, on the dates and in the principal amounts set
forth below, subject to the payments and prepayments of principal set forth
below:
Principal Amount Amount Paid or Unpaid Principal Notation
Date of Loan of Loan Prepaid Amount Made By
F-2
ATL01/10402478v5 A&B Draft 02/19/99
EXHIBIT F
FORM OF NOTICE OF BORROWING
____________, 199__
Wells Fargo Bank, National Association
2859 Paces Ferry Road, Suite 1805
Atlanta, Georgia 30339
Attention: Mary Ann Kelly
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of February 26, 1999, as amended (the "Credit Agreement"), by and among
Regency Centers, L.P. (the "Borrower"), Regency Realty Corporation, the
financial institutions party thereto and their assignees under Section 12.8
thereof, Wells Fargo Bank, National Association, as Agent (the "Agent"), and the
Syndication Agent, Documentation Agent and Managing Agents named therein.
Capitalized terms used herein, and not otherwise defined herein, have their
respective meanings given them in the Credit Agreement.
1. Pursuant to Section 2.1(b) of the Credit Agreement, the
Borrower hereby requests that the Lenders make a Revolving
Loan to the Borrower in an amount equal to
$___________________.
2. The Borrower requests that the Revolving Loan be made
available to the Borrower on ____________, 199__.
3. The Borrower hereby requests that the requested Revolving Loan be of
the following Type:
[Check one box only]
Base Rate Loan
LIBOR Loan, with an initial Interest Period for a duration of:
[Check one box only] one month
two months
three months
six months
4. The proceeds of the Revolving Loan will be used for the following:
--------------------------------------------------
--------------------------------------------------.
The Borrower hereby certifies to the Agent and the Lenders that as of
the date hereof, as of the date of the making of the requested Revolving Loan,
and after making such Revolving Loan, (a) no Default or Event of Default shall
have occurred and be continuing, and (b) the representations and warranties of
the Borrower contained in the Credit Agreement and the other Loan Documents are
and shall be true and correct in all material respects, except to the extent
such representations or warranties specifically relate to an earlier date or
such representations or warranties become untrue by reason of events or
conditions otherwise permitted under the Credit Agreement or the other Loan
Documents.
REGENCY CENTERS, L.P.
By: Regency Realty Corporation,
its sole general partner
By:
Name:
Title:
G-2
ATL01/10402478v5 A&B Draft 02/19/99
EXHIBIT G
FORM OF NOTICE OF CONTINUATION
____________, 199__
Wells Fargo Bank, National Association
2859 Paces Ferry Road, Suite 1805
Atlanta, Georgia 30339
Attention: Mary Ann Kelly
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of February 26, 1999, as amended (the "Credit Agreement"), by and among
Regency Centers, L.P. (the "Borrower"), Regency Realty Corporation, the
financial institutions party thereto and their assignees under Section 12.8
thereof, Wells Fargo Bank, National Association, as Agent (the "Agent"), and the
Syndication Agent, Documentation Agent and Managing Agents named therein.
Capitalized terms used herein, and not otherwise defined herein, have their
respective meanings given them in the Credit Agreement.
Pursuant to Section 2.5 of the Credit Agreement, the Borrower hereby
requests a Continuation of a Revolving Loan under the Credit Agreement, and in
that connection sets forth below the information relating to such Continuation
as required by such Section of the Credit Agreement:
1. The requested date of such Continuation is ____________, 199__.
2. The aggregate principal amount of the Revolving Loan subject
to the requested Continuation is $________________________ and
the portion of such principal amount subject to such
Continuation is $__________________________.
3. The current Interest Period of the Revolving Loan subject to
such Continuation ends on ________________, 199__.
4. The duration of the Interest Period for the Revolving Loan or
portion thereof subject to such Continuation is:
[Check one box only] one month
two months
three months
six months
The Borrower hereby certifies to the Agent and the Lenders that as of
the date hereof, as of the proposed date of the requested Continuation, and
after giving effect to such Continuation, no Event of Default shall have
occurred and be continuing.
If notice of the requested Continuation was given previously by
telephone, this notice is to be considered the written confirmation of such
telephone notice required by Section 2.5 of the Credit Agreement.
REGENCY CENTERS, L.P.
By: Regency Realty Corporation,
its sole general partner
By:
Name:
Title:
H-2
ATL01/10402478v5 A&B Draft 02/19/99
EXHIBIT H
FORM OF NOTICE OF CONVERSION
____________, 199__
Wells Fargo Bank, National Association
2859 Paces Ferry Road, Suite 1805
Atlanta, Georgia 30339
Attention: Mary Ann Kelly
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of February 26, 1999, as amended (the "Credit Agreement"), by and among
Regency Centers, L.P. (the "Borrower"), Regency Realty Corporation, the
financial institutions party thereto and their assignees under Section 12.8
thereof, Wells Fargo Bank, National Association, as Agent (the "Agent"), and the
Syndication Agent, Documentation Agent and Managing Agents named therein.
Capitalized terms used herein, and not otherwise defined herein, have their
respective meanings given them in the Credit Agreement.
Pursuant to Section 2.6 of the Credit Agreement, the Borrower hereby
requests a Conversion of a Revolving Loan of one Type into a Revolving Loan of
another Type under the Credit Agreement, and in that connection sets forth below
the information relating to such Conversion as required by such Section of the
Credit Agreement:
1. The requested date of such Conversion is ______________, 199__.
2. The Type of Revolving Loan to be Converted pursuant hereto is
currently:
[Check one box only] Base Rate Loan
LIBOR Loan
3. The aggregate principal amount of the Revolving Loan subject
to the requested Conversion is $_____________________ and the
portion of such principal amount subject to such Conversion is
$-------------------.
4. The amount of such Revolving Loan to be so Converted is to be
converted into a Revolving Loan of the following Type:
[Check one box only]
Base Rate Loan
LIBOR Loan, with an initial Interest Period for a duration of:
[Check one box only] one month
two months
three months
six months
The Borrower hereby certifies to the Agent and the Lenders that as of
the date hereof, as of the proposed date of the requested Conversion, and after
giving effect to such Conversion, no Event of Default shall have occurred and be
continuing.
If notice of the requested Conversion was given previously by
telephone, this notice is to be considered the written confirmation of such
telephone notice required by Section 2.6 of the Credit Agreement.
REGENCY CENTERS, L.P.
By: Regency Realty Corporation,
its sole general partner
By:
Name:
Title:
I-2
ATL01/10402478v5 A&B Draft 02/19/99
EXHIBIT I
FORM OF BID RATE QUOTE REQUEST
--------------, -----
Wells Fargo Bank, National Association
2859 Paces Ferry Road, Suite 1805
Atlanta, Georgia 30339
Attention: Mary Ann Kelly
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of February 26, 1999, as amended (the "Credit Agreement"), by and among
Regency Centers, L.P. (the "Borrower"), Regency Realty Corporation, the
financial institutions party thereto and their assignees under Section 12.8
thereof, Wells Fargo Bank, National Association, as Agent (the "Agent"), and the
Syndication Agent, Documentation Agent and Managing Agents named therein.
Capitalized terms used herein, and not otherwise defined herein, have their
respective meanings given them in the Credit Agreement.
1.The Borrower hereby requests Bid Rate Quotes for the following proposed Bid
Rate Borrowings:
Borrowing Date Amount1 Type2 Interest Period3
______________, ______ $____________ ____________ ______ days
2. The Borrower's Credit Rating as of the date hereof is:
S&P _______
Moody's _______
3. The proceeds of this Bid Rate borrowing will be used for the
following purpose:
---------------------------------------------------
---------------------------------------------------.
4. After giving effect to the Bid Rate Borrowing requested
herein, the total amount of Bid Rate Loans outstanding shall
be $______________ [must not be in excess of the lesser of (i)
$250,000,000 or (ii) one-half of the aggregate amount of all
existing Commitments].
The Borrower hereby certifies to the Agent and the Lenders that as of
the date hereof, as of the date of the making of the requested Bid Rate Loans,
and after making such Bid Rate Loans, (a) no Default or Event of Default shall
have occurred and be continuing, and (b) the representations and warranties of
the Borrower contained in the Credit Agreement and the other Loan Documents are
and shall be true and correct in all material respects, except to the extent
such representations or warranties specifically relate to an earlier date or
such representations or warranties become untrue by reason of events or
conditions otherwise permitted under the Credit Agreement or the other Loan
Documents. In addition, the Borrower certifies to the Agent and the Lenders that
all conditions to the making of the requested Bid Rate Loans contained in
Article VI. of the Credit Agreement will have been satisfied at the time such
Bid Rate Loans are made.
REGENCY CENTERS, L.P.
By: Regency Realty Corporation,
its sole general partner
By:
Name:
Title:
J-2
ATL01/10402478v5 A&B Draft 02/19/99
EXHIBIT J
FORM OF BID RATE QUOTE
----------------, ----
Wells Fargo Bank, National Association
2859 Paces Ferry Road, Suite 1805
Atlanta, Georgia 30339
Attention: Mary Ann Kelly
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of February 26, 1999, as amended (the "Credit Agreement"), by and among
Regency Centers, L.P. (the "Borrower"), Regency Realty Corporation, the
financial institutions party thereto and their assignees under Section 12.8
thereof, Wells Fargo Bank, National Association, as Agent (the "Agent"), and the
Syndication Agent, Documentation Agent and Managing Agents named therein.
Capitalized terms used herein, and not otherwise defined herein, have their
respective meanings given them in the Credit Agreement.
In response to the Borrower's Bid Rate Quote Request dated
_____________, 19__, the undersigned hereby makes the following Bid Rate
Quote(s) on the following terms:
1. Quoting Lender:____________________________
2. Person to contact at quoting Lender:____________________________
3. The undersigned offers to make Bid Rate Loan(s) in the
following principal amount(s), for the following Interest
Period(s) and at the following Bid Rate(s):
Borrowing Date Amount1 Type2 Interest Period3 Bid Rate
__________, 19___ $_____________ __________ ______days ______%
__________, 19___ $_____________ __________ ______days ______%
__________, 19___ $_____________ __________ ______days ______%
The undersigned understands and agrees that the offer(s) set forth
above, subject to satisfaction of the applicable conditions set forth in the
Credit Agreement, irrevocably obligate[s] the undersigned to make the Bid Rate
Loan(s) for which any offer(s) [is/are] accepted, in whole or in part.
By:
Name:
Title:
K-2
ATL01/10402478v5 A&B Draft 02/19/99
EXHIBIT K
FORM OF BID RATE QUOTE ACCEPTANCE
__________________, 19__
Wells Fargo Bank, National Association
2859 Paces Ferry Road, Suite 1805
Atlanta, Georgia 30339
Attention: Mary Ann Kelly
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of February 26, 1999, as amended (the "Credit Agreement"), by and among
Regency Centers, L.P. (the "Borrower"), Regency Realty Corporation, the
financial institutions party thereto and their assignees under Section 12.8
thereof, Wells Fargo Bank, National Association, as Agent (the "Agent"), and the
Syndication Agent, Documentation Agent and Managing Agents named therein.
Capitalized terms used herein, and not otherwise defined herein, have their
respective meanings given them in the Credit Agreement.
The Borrower hereby accepts the following offer(s) of Bid Rate Quotes
to be made available to the Borrower on ____________, _____:
Quote Date Quoting Lender Type Amount Accepted
____________, 19____ _______________ __________ $___________
____________, 19____ _______________ __________ $___________
____________, 19____ _______________ __________ $___________
The Borrower hereby certifies to the Agent and the Lenders that as of
the date hereof, as of the date of the making of the requested Bid Rate Loans,
and after making such Bid Rate Loans, (a) no Default or Event of Default shall
have occurred and be continuing, and (b) the representations and warranties of
the Borrower contained in the Credit Agreement and the other Loan Documents are
and shall be true and correct in all material respects, except to the extent
such representations or warranties specifically relate to an earlier date or
such representations or warranties become untrue by reason of events or
conditions otherwise permitted under the Credit Agreement or the other Loan
Documents. In addition, the Borrower certifies to the Agent and the Lenders that
all conditions to the making of the requested Bid Rate Loans contained in
Article VI. of the Credit Agreement will have been satisfied at the time such
Bid Rate Loans are made.
REGENCY CENTERS, L.P.
By: Regency Realty Corporation,
its sole general partner
By:
Name:
Title:
L-2
ATL01/10402478v5 A&B Draft 02/19/99
EXHIBIT L
FORM OF NOTICE OF SWINGLINE BORROWING
------------, -----
Wells Fargo Bank, National Association
2859 Paces Ferry Road, Suite 1805
Atlanta, Georgia 30339
Attention: Mary Ann Kelly
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of February 26, 1999, as amended (the "Credit Agreement"), by and among
Regency Centers, L.P. (the "Borrower"), Regency Realty Corporation, the
financial institutions party thereto and their assignees under Section 12.8
thereof, Wells Fargo Bank, National Association, as Agent (the "Agent"), and the
Syndication Agent, Documentation Agent and Managing Agents named therein.
Capitalized terms used herein, and not otherwise defined herein, have their
respective meanings given them in the Credit Agreement.
1. Pursuant to Section 2.3.(b) of the Credit Agreement, the
Borrower hereby requests that the Swingline Lender make a
Swingline Loan to the Borrower in an amount equal to
$-------------------.
2. The Borrower requests that such Swingline Loan be made
available to the Borrower on ______________, ________.
3. The proceeds of this Swingline Loan will be used for the
following purpose:
------------------------------------------------------------
-----------------------------------------------------------.
4. The Borrower requests that the proceeds of such Swingline Loan
be made available to the Borrower by _______________________.
The Borrower hereby certifies to the Agent, the Swingline Lender and
the Lenders that as of the date hereof, as of the date of the making of the
requested Swingline Loan, and after making such Swingline Loan, (a) no Default
or Event of Default shall have occurred and be continuing, and (b) the
representations and warranties of the Borrower contained in the Credit Agreement
and the other Loan Documents are and shall be true and correct in all material
respects, except to the extent such representations or warranties specifically
relate to an earlier date or such representations or warranties become untrue by
reason of events or conditions otherwise permitted under the Credit Agreement or
the other Loan Documents. In addition, the Borrower certifies to the Agent and
the Lenders that all conditions to the making of the requested Swingline Loan
contained in Article VI. of the Credit Agreement will have been satisfied at the
time such Swingline Loan is made.
If notice of the requested borrowing of this Swingline Loan was
previously given by telephone, this notice is to be considered the written
confirmation of such telephone notice required by Section 2.3.(b) of the Credit
Agreement.
REGENCY CENTERS, L.P.
By: Regency Realty Corporation,
its sole general partner
By:
Name:
Title:
M-1
ATL01/10402478v5 A&B Draft 02/19/99
EXHIBIT M
FORM OF EXTENSION REQUEST
____________, 199__
Wells Fargo Realty Bank, National Association, as
Agent
2859 Paces Ferry Road, Suite 1805
Atlanta, Georgia 30339
Attention: Mary Ann Kelly
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of February 26, 1999, as amended (the "Credit Agreement"), by and among
Regency Centers, L.P. (the "Borrower"), Regency Realty Corporation, the
financial institutions party thereto and their assignees under Section 12.8
thereof, Wells Fargo Bank, National Association, as Agent (the "Agent"), and the
Syndication Agent, Documentation Agent and Managing Agents named therein.
Capitalized terms used herein, and not otherwise defined herein, have their
respective meanings given them in the Credit Agreement.
Pursuant to Section 2.10 of the Credit Agreement, the Borrower hereby
requests that the Lenders and the Agent extend the current Revolving Credit
Termination Date of ____________, 199__ by a one-year period to
________________, 199__.
The Borrower hereby certifies to the Agent and the Lenders that as of
the date hereof (a) no Default or Event of Default has occurred and is
continuing, and (b) the representations and warranties of the Borrower contained
in the Credit Agreement and the other Loan Documents are true and correct in all
material respects, except to the extent such representations or warranties
specifically relate to an earlier date or such representations or warranties
become untrue by reason of events or conditions otherwise permitted under the
Credit Agreement or the other Loan Documents.
REGENCY CENTERS, L.P.
By: Regency Realty Corporation,
its sole general partner
By:
Name:
Title:
EXHIBIT O
FORM OF GUARANTY
THIS GUARANTY dated as of February 26, 1999 executed and delivered by
each of the undersigned and the other Persons from time to time party hereto
pursuant to the execution and delivery of an Accession Agreement in the form of
Annex I hereto (all of the undersigned, together with such other Persons each a
"Guarantor" and collectively, the "Guarantors") in favor of (a) WELLS FARGO
BANK, NATIONAL ASSOCIATION, in its capacity as Agent (the "Agent") for the
Lenders under that certain Amended and Restated Credit Agreement dated as of
February 26, 1999, among Regency Centers, L.P. (the "Borrower"), Regency Realty
Corporation (the "Parent"), the financial institutions party thereto and their
assignees under Section 12.8 thereof (the "Lenders"), the Agent, and the
Syndication Agent, Documentation Agent and Managing Agents named therein (as the
same may be amended, restated, supplemented or otherwise modified from time to
time in accordance with its terms, the "Credit Agreement") and (b) the Lenders
and the Swingline Lender.
WHEREAS, pursuant to the Credit Agreement, the Agent, the Lenders and
the Swingline Lender have agreed to make available to the Borrower certain
financial accommodations on the terms and conditions set forth in the Credit
Agreement;
WHEREAS, the Parent is the sole general partner of the Borrower;
WHEREAS, each other Guarantor is owned or controlled by the Borrower,
the Parent or is otherwise an Affiliate of the Borrower or the Parent;
WHEREAS, the Borrower, each Guarantor and the other Subsidiaries of the
Borrower and the Parent, though separate legal entities, are mutually dependent
on each other in the conduct of their respective businesses as an integrated
operation and have determined it to be in their mutual best interests to obtain
financing from the Agent, the Lenders and the Swingline Lender through their
collective efforts;
WHEREAS, each Guarantor acknowledges that it will receive direct and
indirect benefits from the Agent the Lenders and the Swingline Lender making
such financial accommodations available to the Borrower under the Credit
Agreement and, accordingly, each Guarantor is willing to guarantee the
Borrower's obligations to the Agent, the Lenders and the Swingline Lender on the
terms and conditions contained herein; and
WHEREAS, each Guarantor's execution and delivery of this Guaranty is
one of the conditions precedent to the Agent, the Lenders and the Swingline
Lender making, or continuing to make, such financial accommodations to the
Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each Guarantor, each Guarantor
agrees as follows:
Section 1. Guaranty. Each Guarantor hereby absolutely, irrevocably and
unconditionally guaranties the due and punctual payment and performance when
due, whether at stated maturity, by acceleration or otherwise, of all of the
following (collectively referred to as the "Guarantied Obligations"): (a) all
indebtedness and obligations owing by the Borrower to any Lender, the Swingline
Lender or the Agent under or in connection with the Credit Agreement and any
other Loan Document to which the Borrower is a party, including without
limitation, the repayment of all principal of the Loans and the payment of all
interest, fees, charges, reasonable attorneys fees and other amounts payable to
any Lender, the Swingline Lender or the Agent thereunder or in connection
therewith; (b) any and all extensions, renewals, modifications, amendments or
substitutions of the foregoing; (c) all expenses, including, without limitation,
reasonable attorneys' fees and disbursements, that are incurred by the Lenders,
the Swingline Lender and the Agent in the enforcement of any of the foregoing or
any obligation of such Guarantor hereunder and (d) all other Obligations.
Section 2. Guaranty of Payment and Not of Collection. This Guaranty is
a guaranty of payment, and not of collection, and a debt of each Guarantor for
its own account. Accordingly, the Lenders, the Swingline Lender and the Agent
shall not be obligated or required before enforcing this Guaranty against any
Guarantor: (a) to pursue any right or remedy the Lenders, the Swingline Lender
or the Agent may have against the Borrower, any other Loan Party or any other
Person or commence any suit or other proceeding against the Borrower, any other
Loan Party or any other Person in any court or other tribunal; (b) to make any
claim in a liquidation or bankruptcy of the Borrower, any other Loan Party or
any other Person; or (c) to make demand of the Borrower, any other Loan Party or
any other Person or to enforce or seek to enforce or realize upon any collateral
security held by the Lenders, the Swingline Lender or the Agent which may secure
any of the Guarantied Obligations. In this connection, each Guarantor hereby
waives the right of such Guarantor to require any holder of the Guarantied
Obligations to take action against the Borrower as provided in Official Code of
Georgia Annotated ss.10-7-24.
Section 3. Guaranty Absolute. Each Guarantor guarantees that the
Guarantied Obligations will be paid strictly in accordance with the terms of the
documents evidencing the same, regardless of any Applicable Law now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of the
Agent, the Lenders or the Swingline Lender with respect thereto. The liability
of each Guarantor under this Guaranty shall be absolute and unconditional in
accordance with its terms and shall remain in full force and effect without
regard to, and shall not be released, suspended, discharged, terminated or
otherwise affected by, any circumstance or occurrence whatsoever, including
without limitation, the following (whether or not such Guarantor consents
thereto or has notice thereof):
(a)(i) any change in the amount, interest rate or due date or other
term of any of the Guarantied Obligations, (ii) any change in the time, place or
manner of payment of all or any portion of the Guarantied Obligations, (iii) any
amendment or waiver of, or consent to the departure from or other indulgence
with respect to, the Credit Agreement, any other Loan Document, or any other
document or instrument evidencing or relating to any Guarantied Obligations, or
(iv) any waiver, renewal, extension, addition, or supplement to, or deletion
from, or any other action or inaction under or in respect of, the Credit
Agreement, any of the other Loan Documents, or any other documents, instruments
or agreements relating to the Guarantied Obligations or any other instrument or
agreement referred to therein or evidencing any Guarantied Obligations or any
assignment or transfer of any of the foregoing;
(b) any lack of validity or enforceability of the Credit Agreement, any
of the other Loan Documents, or any other document, instrument or agreement
referred to therein or evidencing any Guarantied Obligations or any assignment
or transfer of any of the foregoing;
(c) any furnishing to the Agent, the Lenders or the Swingline Lender of
any security for the Guarantied Obligations, or any sale, exchange, release or
surrender of, or realization on, any collateral securing any of the Obligations;
(d) any settlement or compromise of any of the Guarantied Obligations,
any security therefor, or any liability of any other party with respect to the
Guarantied Obligations, or any subordination of the payment of the Guarantied
Obligations to the payment of any other liability of the Borrower or any other
Loan Party;
(e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to such
Guarantor, the Borrower, any other Loan Party or any other Person, or any action
taken with respect to this Guaranty by any trustee or receiver, or by any court,
in any such proceeding;
(f) any act or failure to act by the Borrower, any other Loan Party or
any other Person which may adversely affect such Guarantor's subrogation rights,
if any, against the Borrower to recover payments made under this Guaranty;
(g) any application of sums paid by the Borrower, any other Loan Party
or any other Person with respect to the liabilities of the Borrower to the
Agent, the Lenders or the Swingline Lender, regardless of what liabilities of
the Borrower remain unpaid;
(h)any defect, limitation or insufficiency in the borrowing powers of
the Borrower or in the exercise thereof; or
(i) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, such Guarantor hereunder (other than
termination of this Guaranty as provided in Section 20. hereof).
Section 4. Action with Respect to Guarantied Obligations. The Lenders,
the Swingline Lender and the Agent may, at any time and from time to time,
without the consent of, or notice to, any Guarantor, and without discharging any
Guarantor from its obligations hereunder take any and all actions described in
Section 3. and may otherwise: (a) amend, modify, alter or supplement the terms
of any of the Guarantied Obligations, including, but not limited to, extending
or shortening the time of payment of any of the Guarantied Obligations or
changing the interest rate that may accrue on any of the Guarantied Obligations;
(b) amend, modify, alter or supplement the Credit Agreement or any other Loan
Document; (c) sell, exchange, release or otherwise deal with all, or any part,
of any collateral securing any of the Obligations; (d) release any Loan Party or
other Person liable in any manner for the payment or collection of the
Guarantied Obligations; (e) exercise, or refrain from exercising, any rights
against the Borrower, any other Loan Party or any other Person; and (f) apply
any sum, by whomsoever paid or however realized, to the Guarantied Obligations
in such order as the Lenders or the Swingline Lender shall elect.
Section 5. Representations and Warranties. Each Guarantor hereby makes
to the Agent, the Lenders and the Swingline Lender all of the representations
and warranties made by the Borrower with respect to or in any way relating to
such Guarantor in the Credit Agreement and the other Loan Documents, as if the
same were set forth herein in full.
Section 6. Covenants. Each Guarantor will comply with all covenants
which the Borrower is to cause such Guarantor to comply with under the terms of
the Credit Agreement or any of the other Loan Documents.
Section 7. Waiver. Each Guarantor, to the fullest extent permitted by
Applicable Law, hereby waives notice of acceptance hereof or any presentment,
demand, protest or notice of any kind, and any other act or thing, or omission
or delay to do any other act or thing, which in any manner or to any extent
might vary the risk of such Guarantor or which otherwise might operate to
discharge such Guarantor from its obligations hereunder.
Section 8. Inability to Accelerate Loan. If the Agent, the Lenders
and/or the Swingline Lender are prevented under Applicable Law or otherwise from
demanding or accelerating payment of any of the Guarantied Obligations by reason
of any automatic stay or otherwise, the Agent, the Lenders and/or the Swingline
Lender shall be entitled to receive from each Guarantor, upon demand therefor,
the sums which otherwise would have been due had such demand or acceleration
occurred.
Section 9. Reinstatement of Guarantied Obligations. If claim is ever
made on the Agent, any Lender or the Swingline Lender for repayment or recovery
of any amount or amounts received in payment or on account of any of the
Guarantied Obligations, and the Agent, such Lender or the Swingline Lender
repays all or part of said amount by reason of (a) any judgment, decree or order
of any court or administrative body of competent jurisdiction, or (b) any
settlement or compromise of any such claim effected by the Agent, such Lender or
the Swingline Lender with any such claimant (including the Borrower or a trustee
in bankruptcy for the Borrower), then and in such event each Guarantor agrees
that any such judgment, decree, order, settlement or compromise shall be binding
on it, notwithstanding any revocation hereof or the cancellation of the Credit
Agreement, any of the other Loan Documents, or any other instrument evidencing
any liability of the Borrower, and such Guarantor shall be and remain liable to
the Agent, such Lender or the Swingline Lender for the amounts so repaid or
recovered to the same extent as if such amount had never originally been paid to
the Agent, such Lender or the Swingline Lender.
Section 10. Subrogation. Upon the making by any Guarantor of any
payment hereunder for the account of the Borrower, such Guarantor shall be
subrogated to the rights of the payee against the Borrower; provided, however,
that such Guarantor shall not enforce any right or receive any payment by way of
subrogation or otherwise take any action in respect of any other claim or cause
of action such Guarantor may have against the Borrower arising by reason of any
payment or performance by such Guarantor pursuant to this Guaranty, unless and
until all of the Guarantied Obligations have been indefeasibly paid and
performed in full. If any amount shall be paid to such Guarantor on account of
or in respect of such subrogation rights or other claims or causes of action,
such Guarantor shall hold such amount in trust for the benefit of the Agent, the
Lenders and the Swingline Lender and shall forthwith pay such amount to the
Agent to be credited and applied against the Guarantied Obligations, whether
matured or unmatured, in accordance with the terms of the Credit Agreement or to
be held by the Agent as collateral security for any Guarantied Obligations
existing.
Section 11. Payments Free and Clear. All sums payable by each Guarantor
hereunder, whether of principal, interest, fees, expenses, premiums or
otherwise, shall be paid in full, without set-off or counterclaim or any
deduction or withholding whatsoever (including any Taxes), and if such Guarantor
is required by Applicable Law or by any Governmental Authority to make any such
deduction or withholding, such Guarantor shall pay to the Agent, the Lenders and
the Swingline Lender such additional amount as will result in the receipt by the
Agent, the Lenders and the Swingline Lender of the full amount payable hereunder
had such deduction or withholding not occurred or been required.
Section 12. Set-off. In addition to any rights now or hereafter granted
under any of the other Loan Documents or Applicable Law and not by way of
limitation of any such rights, each Guarantor hereby authorizes the Agent, at
any time or from time to time upon the occurrence and during the continuance of
an Event of Default, without any prior notice to such Guarantor or to any other
Person, any such notice being hereby expressly waived, to set-off and to
appropriate and to apply any and all deposits (general or special, including,
but not limited to, indebtedness evidenced by certificates of deposit, whether
matured or unmatured) and any other indebtedness at any time held or owing by
the Agent, or any affiliate of the Agent, to or for the credit or the account of
such Guarantor against and on account of any of the Guarantied Obligations,
although such obligations shall be contingent or unmatured. Each Guarantor
agrees, to the fullest extent permitted by Applicable Law, that any Participant
may exercise rights of setoff or counterclaim and other rights with respect to
its participation as fully as if such Participant were a direct creditor of such
Guarantor in the amount of such participation.
Section 13. Subordination. Each Guarantor hereby expressly covenants
and agrees for the benefit of the Agent, the Lenders and the Swingline Lender
that all obligations and liabilities of the Borrower to such Guarantor of
whatever description, including without limitation, all intercompany receivables
of such Guarantor from the Borrower (collectively, the "Junior Claims") shall be
subordinate and junior in right of payment to all Guarantied Obligations. If an
Event of Default shall have occurred and be continuing, then no Guarantor shall
accept any direct or indirect payment (in cash, property, securities by setoff
or otherwise) from the Borrower on account of or in any manner in respect of any
Junior Claim until all of the Guarantied Obligations have been indefeasibly paid
in full.
Section 14. Avoidance Provisions. It is the intent of each Guarantor,
the Agent, the Lenders and the Swingline Lender that in any Proceeding, such
Guarantor's maximum obligation hereunder shall equal, but not exceed, the
maximum amount which would not otherwise cause the obligations of such Guarantor
hereunder (or any other obligations of such Guarantor to the Agent, the Lenders
and the Swingline Lender) to be avoidable or unenforceable against such
Guarantor in such Proceeding as a result of Applicable Law, including without
limitation, (a) Section 548 of the Bankruptcy Code of 1978, as amended (the
"Bankruptcy Code") and (b) any state fraudulent transfer or fraudulent
conveyance act or statute applied in such Proceeding, whether by virtue of
Section 544 of the Bankruptcy Code or otherwise. The Applicable Laws under which
the possible avoidance or unenforceability of the obligations of such Guarantor
hereunder (or any other obligations of such Guarantor to the Agent, the Lenders
and the Swingline Lender) shall be determined in any such Proceeding are
referred to as the "Avoidance Provisions". Accordingly, to the extent that the
obligations of any Guarantor hereunder would otherwise be subject to avoidance
under the Avoidance Provisions, the maximum Guarantied Obligations for which
such Guarantor shall be liable hereunder shall be reduced to that amount which,
as of the time any of the Guarantied Obligations are deemed to have been
incurred under the Avoidance Provisions, would not cause the obligations of any
Guarantor hereunder (or any other obligations of such Guarantor to the Agent,
the Lenders and the Swingline Lender), to be subject to avoidance under the
Avoidance Provisions. This Section is intended solely to preserve the rights of
the Agent, the Lenders and the Swingline Lender hereunder to the maximum extent
that would not cause the obligations of any Guarantor hereunder to be subject to
avoidance under the Avoidance Provisions, and no Guarantor or any other Person
shall have any right or claim under this Section as against the Agent, the
Lenders and the Swingline Lender that would not otherwise be available to such
Person under the Avoidance Provisions.
Section 15. Information. Each Guarantor assumes all responsibility for
being and keeping itself informed of the financial condition of the Borrower and
the other Loan Parties, and of all other circumstances bearing upon the risk of
nonpayment of any of the Guarantied Obligations and the nature, scope and extent
of the risks that such Guarantor assumes and incurs hereunder, and agrees that
none of the Agent, any Lender or the Swingline Lender shall have any duty
whatsoever to advise any Guarantor of information regarding such circumstances
or risks.
Section 16. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
SECTION 17. WAIVER OF JURY TRIAL. (a) EACH GUARANTOR, AND EACH OF THE
AGENT, THE LENDERS AND THE SWINGLINE LENDER BY ACCEPTING THE BENEFITS HEREOF,
ACKNOWLEDGE THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG SUCH GUARANTOR, THE
AGENT, ANY OF THE LENDERS OR THE SWINGLINE LENDER WOULD BE BASED ON DIFFICULT
AND COMPLEX ISSUES OF LAW AND FACT. ACCORDINGLY, EACH GUARANTOR, AND EACH OF THE
AGENT, THE LENDERS AND THE SWINGLINE LENDER BY ACCEPTING THE BENEFITS HEREOF, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY WAIVES TRIAL BY JURY IN
ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH
AN ACTION MAY BE COMMENCED BY OR AGAINST SUCH GUARANTOR ARISING OUT OF THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT OR BY REASON OF ANY OTHER CAUSE OR DISPUTE
WHATSOEVER BETWEEN OR AMONG SUCH GUARANTOR, THE AGENT, ANY OF THE LENDERS OR THE
SWINGLINE LENDER OF ANY KIND OR NATURE.
(b) THE FOREGOING WAIVERS HAVE BEEN MADE WITH THE ADVICE OF COUNSEL AND
WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE
THE PAYMENT OF THE OBLIGATIONS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER
THE OTHER LOAN DOCUMENTS AND THE TERMINATION OF THIS GUARANTY.
Section 18. Loan Accounts. The Agent, each Lender and the Swingline
Lender may maintain books and accounts setting forth the amounts of principal,
interest and other sums paid and payable with respect to the Guarantied
Obligations, and in the case of any dispute relating to any of the outstanding
amount, payment or receipt of any of the Guarantied Obligations or otherwise,
the entries in such books and accounts shall constitute prima facie evidence of
the outstanding amount of such Guarantied Obligations and the amounts paid and
payable with respect thereto. The failure of the Agent, any Lender or the
Swingline Lender to maintain such books and accounts shall not in any way
relieve or discharge any Guarantor of any of its obligations hereunder.
Section 19. Waiver of Remedies. No delay or failure on the part of the
Agent, any Lender or the Swingline Lender in the exercise of any right or remedy
it may have against any Guarantor hereunder or otherwise shall operate as a
waiver thereof, and no single or partial exercise by the Agent, any Lender or
the Swingline Lender of any such right or remedy shall preclude other or further
exercise thereof or the exercise of any other such right or remedy.
Section 20. Termination. This Guaranty shall remain in full force and
effect until the earlier of (a) indefeasible payment in full of the Obligations
and the termination or cancellation of the Credit Agreement and (b) the release
by the Agent of each Guarantor herefrom pursuant to Section 4.2 of the Credit
Agreement.
Section 21. Successors and Assigns. Each reference herein to the Agent,
the Lenders or the Swingline Lender shall be deemed to include such Person's
respective successors and assigns (including, but not limited to, any holder of
the Guarantied Obligations) in whose favor the provisions of this Guaranty also
shall inure, and each reference herein to each Guarantor shall be deemed to
include such Guarantor's successors and assigns, upon whom this Guaranty also
shall be binding. The Lenders and the Swingline Lender may, in accordance with
the applicable provisions of the Credit Agreement, assign, transfer or sell any
Guarantied Obligations, or grant or sell participation in any Guarantied
Obligations, to any Person without the consent of, or notice to, any Guarantor
and without releasing, discharging or modifying any Guarantor's obligations
hereunder. Each Guarantor hereby consents to the delivery by the Agent, any
Lender or the Swingline Lender to any Assignee or Participant (or any
prospective Assignee or Participant) of any financial or other information
regarding the Borrower or any Guarantor. No Guarantor may assign or transfer its
obligations hereunder to any Person.
Section 22. Joint and Several Obligations. the obligationS of the
Guarantors HEREUNDER SHALL BE joint and several, and ACCORDINGLY, each Guarantor
CONFIRMS THAT IT is liable for the full amount of the "GUARANTiED Obligations"
AND ALL OF THE OBLIGATIONS AND LIABILITIES OF EACH OF THE OTHER gUARANTORS
HEREUNDER.
Section 23. Amendments. This Guaranty may not be amended except in
writing signed by the Agent and each Guarantor.
Section 24. Payments. All payments to be made by any Guarantor pursuant
to this Guaranty shall be made in Dollars, in immediately available funds to the
Agent at its Lending Office, not later than 11:00 a.m., on the date one Business
Day after demand therefor.
Section 25. Notices. All notices, requests and other communications
hereunder shall be in writing (including facsimile transmission or similar
writing) and shall be given (a) to each Guarantor at its address set forth below
its signature hereto, (b) to the Agent, any Lender or the Swingline Lender at
its address for notices provided for in the Credit Agreement, or (c) as to each
such party at such other address as such party shall designate in a written
notice to the other parties. Each such notice, request or other communication
shall be effective (i) if mailed, when received; (ii) if telecopied, when
transmitted; or (iii) if hand delivered, when delivered; provided, however, that
any notice of a change of address for notices shall not be effective until
received.
Section 26. Severability. In case any provision of this Guaranty shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 27. Headings. Section headings used in this Guaranty are for
convenience only and shall not affect the construction of this Guaranty.
Section 28. Definitions. (a) For the purposes of this Guaranty:
"Proceeding" means any of the following: (i) a voluntary or involuntary
case concerning any Guarantor shall be commenced under the Bankruptcy Code of
1978, as amended; (ii) a custodian (as defined in such Bankruptcy Code or any
other applicable bankruptcy laws) is appointed for, or takes charge of, all or
any substantial part of the property of any Guarantor; (iii) any other
proceeding under any Applicable Law, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up or composition for adjustment
of debts, whether now or hereafter in effect, is commenced relating to any
Guarantor; (iv) any Guarantor is adjudicated insolvent or bankrupt; (v) any
order of relief or other order approving any such case or proceeding is entered
by a court of competent jurisdiction; (vi) any Guarantor makes a general
assignment for the benefit of creditors; (vii) any Guarantor shall fail to pay,
or shall state that it is unable to pay, or shall be unable to pay, its debts
generally as they become due; (viii) any Guarantor shall call a meeting of its
creditors with a view to arranging a composition or adjustment of its debts;
(ix) any Guarantor shall by any act or failure to act indicate its consent to,
approval of or acquiescence in any of the foregoing; or (x) any corporate action
shall be taken by any Guarantor for the purpose of effecting any of the
foregoing.
(b) Terms not otherwise defined herein are used herein with the
respective meanings given them in the Credit Agreement.
Section 29. NO NOVATION. THE PARTIES HERETO HAVE ENTERED INTO THIS
GUARANTY SOLELY TO AMEND AND RESTATE THE TERMS OF THE EXISTING GUARANTY. THE
PARTIES DO NOT INTEND THIS AGREEMENT, NOR THE TRANSACTIONS CONTEMPLATED HEREBY,
TO BE, AND THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT BE
CONSTRUED TO BE, A NOVATION OR WAIVER OF ANY OF THE OBLIGATIONS OWING BY ANY
EXISTING GUARANTOR UNDER OR IN CONNECTION WITH THE EXISTING GUARANTY.
[Signatures on Next Page]
IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this
Guaranty as of the date and year first written above.
[GUARANTOR]
[GUARANTOR]
By:
Name:
Title:
Address for Notices for all Guarantors:
c/o Regency Realty Corporation
121 West Forsyth Street, Suite 200
Jacksonville, Florida 32202
Attention: Bruce Johnson
Telecopier: (904) 634-3428
Telephone: (904) 356-7000
ANNEX I
FORM OF ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT dated as of ____________, ____, executed and
delivered by ______________________, a _____________ (the "New Guarantor") in
favor of (a) WELLS FARGO BANK, NATIONAL ASSOCIATION, in its capacity as Agent
(the "Agent") for the Lenders under that certain Amended and Restated Credit
Agreement dated as of February 26, 1999 (as the same may be amended, restated,
supplemented or otherwise modified from time to time in accordance with its
terms, the "Credit Agreement"), by and among Regency Centers, L.P., a Delaware
limited partnership (the "Borrower"), Regency Realty Corporation, a Florida
corporation (the "Parent"), the financial institutions initially party thereto
and their assignees under Section 12.8 thereof (the "Lenders"), the Agent, and
the Syndication Agent, Documentation Agent and Managing Agents named therein and
(b) the Lenders and the Swingline Lender.
WHEREAS, pursuant to the Credit Agreement, the Agent, the Lenders and
the Swingline Lender have agreed to make available to the Borrower certain
financial accommodations on the terms and conditions set forth in the Credit
Agreement;
WHEREAS, the New Guarantor is owned or controlled by the Borrower, the
Parent or is otherwise an Affiliate of the Borrower or the Parent;
WHEREAS, the Borrower, the New Guarantor, the other Subsidiaries of the
Borrower and the Parent, though separate legal entities, are mutually dependent
on each other in the conduct of their respective businesses as an integrated
operation and have determined it to be in their mutual best interests to obtain
financing from the Agent, the Lenders and the Swingline Lender through their
collective efforts;
WHEREAS, the New Guarantor acknowledges that it will receive direct and
indirect benefits from the Agent, the Lenders and the Swingline Lenders making
such financial accommodations available to the Borrower under the Credit
Agreement and, accordingly, the New Guarantor is willing to guarantee the
Borrower's obligations to the Agent, the Lenders and the Swingline Lenders on
the terms and conditions contained herein; and
WHEREAS, the New Guarantor's execution and delivery of this Agreement
is a condition to the Agent, the Lenders and the Swingline Lenders continuing to
make such financial accommodations to the Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the New Guarantor, the New
Guarantor agrees as follows:
Section 1. Accession to Guaranty. The New Guarantor hereby agrees that
it is a "Guarantor" under that certain Guaranty dated as of February 26, 1999
(the "Guaranty"), made by each Subsidiary a party thereto in favor of the Agent,
the Lenders and the Swingline Lender and assumes all obligations of a
"Guarantor" thereunder, all as if the New Guarantor had been an original
signatory to the Guaranty. Without limiting the generality of the foregoing, the
New Guarantor hereby:
(a) irrevocably and unconditionally guarantees the due and punctual
payment and performance when due, whether at stated maturity, by acceleration or
otherwise, of all Guarantied Obligations;
(b) makes to the Agent, the Lenders and the Swingline Lender as of the
date hereof each of the representations and warranties contained in Section 5 of
the Guaranty and agrees to be bound by each of the covenants contained in
Section 6 of the Guaranty; and
(c) consents and agrees to each provision set forth in the Guaranty.
SECTION 2. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
Section 3. Definitions.Capitalized terms used herein and not otherwise
defined herein shall have their respective defined meanings given them in the
Credit Agreement.
[Signatures on Next Page]
IN WITNESS WHEREOF, the New Guarantor has caused this Accession
Agreement to be duly executed and delivered under seal by its duly authorized
officers as of the date first written above.
[NEW GUARANTOR]
By:_________________________________________
Name:_______________________________________
Title:______________________________________
(CORPORATE SEAL)
Address for Notices:
121 West Forsyth Street, Suite 200
Jacksonville, Florida 32202
Attention: Bruce Johnson
Telecopier: (904) 634-3428
Telephone: (904) 356-7000
Accepted:
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Agent
By: ________________________
Name:__________________
Title:_________________
P-2
ATL01/10402478v5 A&B Draft 02/19/99
EXHIBIT P
FORM OF UNENCUMBERED POOL CERTIFICATE
Reference is made to that certain Amended and Restated Credit Agreement
dated as of February 26, 1999 (as amended, supplemented or restated from time to
time, the "Credit Agreement") among Regency Centers, L.P., Regency Realty
Corporation, the financial institutions party thereto and their assignees under
Section 12.8 thereof (the "Lenders"), Wells Fargo Bank, National Association, as
Agent (the "Agent"), and the Syndication Agent, Documentation Agent and Managing
Agents named therein. Capitalized terms used herein, and not otherwise defined
herein, have their respective meanings given to them in the Credit Agreement.
Pursuant to Section [4.1(b)(ii)][4.1(c)(x)][8.1] of the Credit
Agreement, the undersigned hereby certifies to the Lenders and the Agent that
Schedule 1 attached hereto accurately and completely sets forth, as of the date
hereof: (i) the Net Operating Income of each Unencumbered Pool Property for the
fiscal quarter most recently ended, (ii) the Unencumbered Pool Value, (iii) all
Unsecured Liabilities (other than the Loans) of the Parent and its Subsidiaries
on a consolidated basis, (iv) the aggregate amount of the Commitments, (v) the
Maximum Loan Availability; (vi) the percentage amount of the Unencumbered Pool
Value attributable to all Unencumbered Pool Properties which are owned by
Subsidiaries of the Borrower that are not Wholly Owned Subsidiaries (which
percentage amount shall not exceed 20%); and (vii) the weighted average
Occupancy Rate of all Unencumbered Pool Properties calculated in accordance with
Section 4.3 of the Credit Agreement.*
[For certificates delivered pursuant to Sections 4.1(b)(ii) and
4.1(c)(x) only For each Property submitted as an Eligible Property pursuant to
Section [4.1(b)(ii)][ 4.1(c)(x)] on the date hereof Schedule 1 attached hereto
also sets forth:
(I) the Occupancy Rate of such Property; and
[for certificates delivered pursuant to Section 4.1(b)(ii)
only (II) the percentage amount of the total Unencumbered Pool Value
attributable to each Unencumbered Pool Property (which percentage
amount shall not exceed 5%)]];
The undersigned further certifies to the Agent, the Lenders and the
Swingline Lender that as of the date hereof (a) no Default or Event of Default
has occurred and is continuing, and (b) the representations and warranties of
the Borrower contained in the Credit Agreement and the other Loan Documents are
true and correct in all material respects, except to the extent such
representations or warranties specifically relate to an earlier date or such
representations or warranties become untrue by reason of events or conditions
otherwise permitted under the Credit Agreement or the other Loan Documents.
IN WITNESS WHEREOF, the undersigned has signed this Unencumbered Pool
Certificate on and as of ___________, 19__.
- -------------------------------------------------------------------------------
Name: __________________________________________
Title: Chief Financial Officer
Q-2
ATL01/10402478v5 A&B Draft 02/19/99
EXHIBIT Q
FORM OF COMPLIANCE CERTIFICATE
Reference is made to that certain Amended and Restated Credit Agreement
dated as of February 26, 1999 (as amended, supplemented or restated from time to
time, the "Credit Agreement") among Regency Centers, L.P. (the "Borrower"),
Regency Realty Corporation, the financial institutions party thereto and their
assignees under Section 12.8 thereof (the "Lenders"), Wells Fargo Bank, National
Association, as Agent (the "Agent"), and the Syndication Agent, Documentation
Agent and Managing Agents named therein. Capitalized terms used herein, and not
otherwise defined herein, have their respective meanings given to them in the
Credit Agreement.
Pursuant to Section 8.1(c) of the Credit Agreement, the undersigned
hereby certifies to the Agent, the Lenders and the Swingline Lender that:
1._______(a) The undersigned has reviewed the terms of the Credit
Agreement and has made a review of the transactions, financial condition and
other affairs of the Parent, the Borrower and each other Guarantor as of, and
during the relevant accounting period ending on, _______________, 19__ and (b)
such review has not disclosed the existence during such accounting period, and
the undersigned does not have knowledge of the existence, as of the date hereof,
of any condition or event constituting a Default or Event of Default [except as
set forth on Attachment A hereto, which accurately describes the nature of the
conditions(s) or event(s) that constitute (a) Default(s) or (an) Event(s) of
Default and the actions which the Borrower (is taking)(is planning to take) with
respect to such condition(s) or event(s)].
2._______Schedule 1 attached hereto accurately and completely sets
forth the calculations required to establish compliance with Sections 8.12 and
8.23 and each of the Sections contained in Article IX of the Credit Agreement on
date of the financial statements for the accounting period set forth above.
3._______The aggregate outstanding principal amount of the Loans as of
the date hereof is equal to or less than the Maximum Loan Availability and the
aggregate outstanding principal amount of the Bid Rate Loans as of the date
hereof is equal to or less than $250,000,000.
4._______(a) No Default or Event of Default has occurred and is
continuing, and (b) the representations and warranties of the Borrower contained
in the Credit Agreement and the other Loan Documents are true and correct in all
material respects, except to the extent such representations or warranties
specifically relate to an earlier date or such representations or warranties
become untrue by reason of events or conditions otherwise permitted under the
Credit Agreement or the other Loan Documents.
IN WITNESS WHEREOF, the undersigned has signed this Unencumbered Pool
Certificate on and as of ___________, 19__.
- -------------------------------------------------------------------------------
Name: __________________________________________
Title: Chief Financial Officer
R-4
ATL01/10402478v5 A&B Draft 02/19/99
EXHIBIT R
FORM OF PROPERTY CERTIFICATE
Reference is made to that certain Amended and Restated Credit Agreement
dated as of February 26, 1999 (as amended, supplemented, restated or otherwise
modified from time to time, the "Credit Agreement") among Regency Centers, L.P.
(the "Borrower"), Regency Realty Corporation, the financial institutions party
thereto and their assignees under Section 12.8 thereof (the "Lenders"), Wells
Fargo Bank, National Association, as Agent (the "Agent"), and the Syndication
Agent, Documentation Agent and Managing Agents named therein. Capitalized terms
used herein, and not otherwise defined herein, have their respective meanings
given to them in the Credit Agreement.
Pursuant to Section 4.1(b)(iv) of the Credit Agreement, the undersigned
hereby certifies to the Agent and the Lenders, with respect to each of the
properties listed on Schedule 1 attached hereto, that:
(a) such property is improved with one or more operating retail shopping
centers and includes a grocery store as an anchor tenant.
(b) such property is owned in fee simple by the entity designated as the
owner of such property on Schedule 1. Schedule 1 sets forth the capital
structure of each such owner if such owner is not the Borrower.
(c) (i) such Property is owned in fee simple by only the Borrower or a
Subsidiary of the Borrower;
(ii) neither such Property, nor any interest of the Borrower or such
Subsidiary therein, is subject to any Lien other than Permitted Liens or
to any agreement (other than this Agreement or any other Loan Document)
that prohibits the creation of any Lien thereon as security for
Indebtedness; (iii) if such Property is owned by a Subsidiary of the
Borrower, (A) none of the Borrower's direct or indirect ownership
interest in such Subsidiary is subject to any Lien other than Permitted
Liens or to any agreement (other than this Agreement or any other Loan
Document) that prohibits the creation of any Lien thereon as security
for Indebtedness and (B) the Borrower directly, or indirectly through a
Subsidiary, has the right to take the following actions without the need
to obtain the consent of any Person: (I) to create Lien on such Property
as security for Indebtedness of the Borrower or such Subsidiary, as
applicable and (II) to sell, transfer or otherwise dispose of such
Property; (iv) such Property is not a Development Property and has an
Occupancy Rate which has remained stabilized; (v) such Property is free
of all structural defects, title defects, environmental conditions or
other adverse matters except for defects, conditions or matters
individually or collectively which are not material to the profitable
operation of such Property; (vi) such Property is not subject to a
ground lease (other than a lease of land on such Property by the
Borrower or such Subsidiary to a Person which is not an Affiliate) and
(vii) such Property is improved with a shopping center with a shopping
center or a stand-alone building containing a grocery store occupied by
a Credit Tenant.
(d) the value of the Property (when calculated in accordance with the
definition of Unencumbered Pool Value), will not exceed 5% of the
Unencumbered Pool Value (determined as if such Property were an
Unencumbered Pool Property).
(e) such Property is located in the United States.
(f) (i) (A) Borrower has obtained, with respect to such property a "Phase
I" environmental assessment, prepared as of the date indicated
on Schedule 1, by the consultant identified on Schedule 1;
(B) such consultant is of good repute within the region
in which such property is located and is believed by
Borrower to be competent;
(C) Borrower has reviewed such assessment and believes it
reasonable to rely upon such assessment; and
(D) such assessment does not (1) identify any
contamination or potential contamination that has
resulted in, or that could reasonably be anticipated
to result in a materially adverse effect upon the
condition, market value, Net Operating Income or
prospects of such property, (2) recommend that any
further material investigation be undertaken or (3)
identify any potential or actual recognized
environmental condition; and
(ii) (A) Borrower has obtained, with respect to such
property a structural/physical report, prepared as of
the date indicated on Schedule 1, by the consultant
identified on Schedule 1;
(B) such consultant is of good repute within the region
in which such property is located and is believed by
Borrower to be competent;
(C) Borrower has reviewed such report and believes it
reasonable to rely upon such report; and
(D) such report does not identify any material defect in
construction or physical condition of the property,
material variance from any available plans and
specifications for the property or material violation
of applicable law, or other item of material concern
with respect to the structural integrity or physical
condition of the property.
(g) the value of all Properties which are owned by Subsidiaries that are
not Wholly Owned Subsidiaries, including the Property described herein,
if applicable (when calculated in accordance with the definition of
Unencumbered Pool Value), does not exceed 20% of the Unencumbered Pool
Value (determined as if such Property were an Unencumbered Pool
Property). Schedule 1 sets forth the percentage of the Unencumbered
Pool Value attributable to Unencumbered Pool Properties which are owned
by Subsidiaries that are not Wholly Owned Subsidiaries (determined as
if such Property were an Unencumbered Pool Property).
IN WITNESS WHEREOF, the undersigned has signed this Property
Certificate on and as of ___________, 19__.
- -------------------------------------------------------------------------------
Name: __________________________________________
Title: Chief Financial Officer
SCHEDULE 1
TO PROPERTY CERTIFICATE
A. Property Description [For each Property]
1. Property Name:
2. Owner: [If not Borrower, set forth capital structure of the owner]
3. Environmental Information:
a._______Date Phase 1 prepared: ___________________________.
b._______The Phase 1 was prepared by _________________________.
4. Structural/Physical Report:
a. _______Date Structural/Physical Report Prepared: __________________.
b. The Structural/Physical Report was prepared by ______________________.
5. Percentage of Unencumbered Pool Value Attributable to Unencumbered Pool
Properties owned by Subsidiaries which are not Wholly Owned
Subsidiaries: ____%
1 Minimum amount of $15,000,000 or larger multiple of $1,000,000.
2 Insert either Absolute Rate (for Absolute Rate Loan) or LIBOR Margin
(for LIBOR Margin Loan).
3 Must be 30, 60 or 90 days.
1 Minimum amount of $5,000,000 or larger multiple of $1,000,000.
2 Insert either Absolute Rate (for Absolute Rate Loan) or LIBOR Margin
(for LIBOR Margin Loan).
3 Must be 30, 60 or 90 days.
* When the Unencumbered Pool Certificate is delivered in connection with
Sections 4.1(b)(ii) and 4.1(c)(x) of the Credit Agreement the
calculations set forth in items (i) through (v) should be determined on
a pro forma basis assuming that the Eligible Property being submitted
as an Unencumbered Pool Property is accepted as an Unencumbered Pool
Property.