Regency Centers Corporation
5,000,000 Depositary Shares
each representing one-tenth (1/10th) fractional interest
of a share of 7.25% Series 4
Cumulative Redeemable
Preferred Stock
($0.01 par value)
Underwriting Agreement
New York, New York
August 4, 2004
Citigroup Global Markets Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Wachovia Capital Markets, LLC
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000,
As Representatives of the several Underwriters,
Ladies and Gentlemen:
Regency Centers Corporation, a Florida corporation (the
"Company"), which is the general partner of Regency Centers, L.P., a Delaware
limited partnership (the "Partnership"), proposes to sell to the several
underwriters named in Schedule I hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, 5,000,000 Depositary Shares ("
Depositary Shares"), each representing one-tenth (1/10th) fractional interest of
a share of 7.25% Series 4 Cumulative Redeemable Preferred Stock, $0.01 par
value, of the Company (the "Preferred Stock") deposited with Wachovia Bank,
National Association (said shares of Preferred Stock to be issued and sold by
the Company and said Depositary Shares being hereinafter called the
"Securities"). To the extent there are no additional Underwriters listed on
Schedule I other than you, the term Representatives as used herein shall mean
you, as Underwriters, and the terms Representatives and Underwriters shall mean
either the singular or plural as the context requires. Any reference herein to
the Registration Statement, a Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of
such Preliminary Prospectus or the Prospectus, as the case may be; and any
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reference herein to the terms "amend", "amendment" or "supplement" with respect
to the Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement, or the
issue date of any Preliminary Prospectus or the Prospectus, as the case may be,
deemed to be incorporated therein by reference. Certain terms used herein are
defined in Section 17 hereof.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3
under the Act and has prepared and filed with the Commission a registration
statement (file number 333-37911) on Form S-3, including a related preliminary
prospectus, for registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments thereto, including
a related preliminary prospectus, each of which has previously been furnished to
you. The Company will next file with the Commission one of the following: either
(1) prior to the Effective Date of such registration statement, a further
amendment to such registration statement (including the form of final
prospectus), or (2) after the Effective Date of such registration statement, a
final prospectus in accordance with Rules 430A and 424(b). In the case of clause
(2), the Company has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information) required by
the Act and the rules thereunder to be included in such registration statement
and the Prospectus as of the Effective Date. As filed, such amendment and form
of final prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information, and, except to
the extent the Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein (excluding
Exchange Act filings incorporated therein by reference).
(b) On the Effective Date, the Registration Statement (and
any amendment or supplement thereto) did or will, and when the Prospectus is
first filed (if required) in accordance with Rule 424(b) and on the Closing Date
(as defined herein), the Prospectus (and any amendments or supplements thereto)
will, comply in all material respects with the applicable requirements of the
Act and the Exchange Act and the respective rules thereunder; on the Effective
Date and at the Execution Time, the Registration Statement (and any amendment or
supplement thereto) did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and, on the
Effective Date, the Prospectus, if not filed pursuant to Rule 424(b), will not,
and on the date of any filing pursuant to Rule 424(b) and on the Closing Date,
the Prospectus (together with any amendment or supplement thereto) will not,
3
include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties in this paragraph (ii)
as to the information contained in or omitted from the Registration Statement or
the Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with the information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for inclusion
in the Registration Statement or the Prospectus (or any amendment or supplement
thereto); and no order preventing or suspending the use of the Registration
Statement has been issued by the Commission;
(c) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in conformity
with the information furnished in writing to the Company by an Underwriter
through the Representatives expressly for use in the Prospectus as amended or
supplemented;
(d) Neither the Company nor any of its subsidiaries,
including the Partnership, has sustained since the date of the latest audited
financial statements included or incorporated by reference in the Prospectus any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, as amended or supplemented; and, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any change in the capital stock or
partnership interests of the Company or any of its subsidiaries (including the
Partnership) (other than issuances of capital stock or partnership interests in
connection with employee benefit plans, dividend reinvestment plans, the
exercise of options, the exchange of Partnership units, the payment of earn-outs
pursuant to contractual commitments and the issuance of Partnership units in
partial consideration for the purchase of an asset in June 2004) or in the
partners' capital of the Partnership or any of its subsidiaries, any change in
mortgage loans payable or long-term debt of the Company or any of its
subsidiaries (including the Partnership) in excess of $20,000,000 (other than
4
the increase in unsecured debt of approximately $25 million since March 31,
2004) or any material adverse change in excess of $20,000,000, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity, partners'
capital or results of operations of the Company and its subsidiaries (including
the Partnership), otherwise than as set forth or contemplated in the Prospectus;
(e) The Company and its subsidiaries (including the
Partnership) have good and marketable title in fee simple to all real property
and good and marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made and proposed to be made of
such property by the Company and its subsidiaries (including the Partnership);
and any real property and buildings held under lease by the Company and its
subsidiaries (including the Partnership) are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries (including the Partnership);
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Florida, with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus, as amended or
supplemented, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so
as to require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such jurisdiction;
the Partnership has been duly organized and is validly existing in good standing
under the laws of the State of Delaware, with power and authority to own its
properties and conduct its business as described in the Prospectus, as amended
or supplemented, and has been duly qualified as a foreign partnership for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so
as to require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such jurisdiction;
and each subsidiary of the Company has been duly incorporated or organized and
is validly existing as a corporation or other entity in good standing under the
laws of its jurisdiction of incorporation or organization;
(g) All of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and non
assessable; the capital stock of the Company conforms in all material respects
to the description thereof in the Prospectus, as amended or supplemented; and,
except as set forth on Exhibit A, all of the issued shares of capital stock or
other equity interests of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non assessable and (except as
set forth on Exhibit A and directors' qualifying shares) are owned directly or
5
indirectly by the Company, free and clear of all liens, encumbrances, equities
or claims; all of the issued partnership interests of the Partnership have been
duly and validly authorized and issued and are fully paid and non assessable;
(h) The Securities have been duly and validly authorized
and, when issued and delivered and paid for by the underwriters pursuant to this
Agreement, will be validly issued, fully paid and non-assessable; and the
Securities conform to the description thereof contained in the Registration
Statement and the Prospectus, as amended or supplemented; upon issuance of
depositary receipts ("Receipts") evidencing Depositary Shares against the
deposit of shares of Preferred Stock in accordance with the provisions of the
Deposit Agreement, to be entered into on the Closing Date between the Company,
Wachovia Bank, National Association and the holders of Receipts from time to
time (the "Deposit Agreement"), such Receipts will be duly and validly issued
and the persons in whose names the Receipts are registered will be entitled to
the rights specified therein and in the Deposit Agreement;
(i) This Agreement has been duly authorized, executed and
delivered by the Company, and the Deposit Agreement has been duly authorized
and, when executed and delivered by the Company, will be a valid, binding and
enforceable obligation of the Company;
(j) None of the transactions contemplated by this Agreement
and the Deposit Agreement will violate or result in a violation of Section 7 of
the Exchange Act, or any regulation promulgated thereunder, including, without
limitation, Regulations T, U, and X of the Board of Governors of the Federal
Reserve System;
(k) Prior to the date hereof, neither the Company nor any of
its affiliates (including the Partnership) has taken any action which is
designed to or which has constituted or which might have been expected to cause
or result in stabilization or manipulation of the price of any security of the
Company in connection with the offering of the Securities;
(l) The execution and delivery by the Company of this
Agreement, the compliance by the Company with all of the provisions hereof and
of the Deposit Agreement and the consummation of the transactions by the Company
herein and therein contemplated, and, to its knowledge, the sale of the
Securities and the compliance by the Company with all of the provisions of the
Securities and the consummation of the transactions by the parties other than
the Company herein and therein contemplated, will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, (i) any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its subsidiaries
(including the Partnership) is a party or by which the Company or any of its
subsidiaries (including the Partnership) is bound or to which any of the
property or assets of the Company or any of its subsidiaries (including the
Partnership) is subject, (ii) the provisions of the Articles of Incorporation or
By-laws of the Company, the Certificate of Limited Partnership or partnership
6
agreement of the Partnership or (iii) any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries (including the Partnership) or any of
their properties other than, in the case of clauses (i) and (iii), such breaches
or violation which, if determined adversely to the Company, would not reasonably
be expected to have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of operations
of the Company and its subsidiaries taken as a whole or on the consummation of
the transactions contemplated herein; and no consent, approval, authorization,
order, registration or qualification of or with any such court or governmental
agency or body is required for the sale of the Securities or the consummation by
the Company of the transactions contemplated by this Agreement and the Deposit
Agreement, except such as have been, or will have been prior to the Closing Date
(as defined in Section 3 hereof), obtained under the Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws or the rules of the National Association
of Securities Dealers Inc. or the New York Stock Exchange, Inc. in connection
with the purchase and distribution of the Securities by the Underwriters;
(m) Neither the Company nor any of its subsidiaries
(including the Partnership) is in violation of its Articles of Incorporation,
By-laws, Certificate of Limited Partnership or partnership agreement or in
default in the performance or observance of any material obligation, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound;
(n) The statements set forth in the Registration Statement
and the Prospectus under the captions "Capital Stock", "Description of Common
Stock", "Description of Preferred Stock", "Description of Depositary Shares" and
"Plan of Distribution" and the statements set forth in the Prospectus Supplement
under the captions "Certain Federal Income Tax Considerations" and
"Underwriting" (other than the information furnished in writing to the Company
by or on behalf of any Underwriter through the Representatives) are, insofar as
such statements constitute a summary of the terms of the Securities and the laws
and documents referred to therein, accurate and complete in all material
respects;
(o) Other than as set forth in the Prospectus, as amended or
supplemented, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries (including the Partnership) is a party or
of which any property of the Company or any of its subsidiaries (including the
Partnership) is the subject which, if determined adversely to the Company or any
of its subsidiaries (including the Partnership), would individually or in the
aggregate have a material adverse effect on the current or future financial
position, stockholders' equity, partners' capital or results of operations of
the Company and its subsidiaries (including the Partnership); and, to the best
of the Company's knowledge and the Partnership's knowledge, no such proceedings
7
are threatened or contemplated by governmental authorities or threatened by
others;
(p) The Company has qualified to be taxed as a real estate
investment trust pursuant to Sections 856 through 860 of the Code, for each of
the fiscal years from its inception through the most recently completed fiscal
year and the Company's present and contemplated organization, ownership, method
of operation, assets and income, taking into account the consummation of the
transactions contemplated herein, are such that the Company is in a position
under present law to so qualify for the current fiscal year and in the future;
(q) Neither the Company nor the Partnership has knowledge of
(i) the presence of any hazardous substances, hazardous materials, toxic
substances or waste materials (collectively, "Hazardous Materials") on any of
the properties owned by it in violation of law or in excess of regulatory action
levels or (ii) any unlawful spills, releases, discharges or disposal of
Hazardous Materials that have occurred or are presently occurring on or off such
properties as a result of any construction on or operation and use of such
properties, which presence or occurrence would materially adversely affect the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Company or the Partnership; and in connection with the
construction on or operation and use of the properties owned by the Company and
the Partnership, neither has any knowledge of any material failure to comply
with all applicable local, state and federal environmental laws, regulations,
agency requirements, ordinances and administrative and judicial orders;
(r) Neither the Company nor the Partnership is, and after
giving effect to the offering and sale of the Securities, will be an "investment
company", or an entity "controlled" by an "investment company", as such terms
are defined in the Investment Company Act; and
(s) KPMG LLP, who have certified certain financial
statements of the Company and its subsidiaries and the Partnership and its
subsidiaries, are independent public accountants as required by the Act and the
rules and regulations of the Commission thereunder.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
$24.2125 per Depositary Share, the amount of the Securities set forth opposite
such Underwriter's name in Schedule I hereto.
8
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 10:00 AM, New York City time, on August 31, 2004, or
at such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
The Company will pay all applicable state transfer taxes, if
any, involved in the transfer to the several Underwriters of the Securities to
be purchased by them from the Company and the respective Underwriters will pay
any additional stock transfer taxes involved in further transfers by them.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to the public as
set forth in the Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the offering
of the Securities, the Company will not file any amendment of the Registration
Statement (excluding filings under the Exchange Act incorporated by reference
into the Registration Statement) or amendment or supplement to the Prospectus or
any Rule 462(b) Registration Statement unless the Company has furnished you a
copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has become or
becomes effective pursuant to Rule 430A, or filing of the Prospectus is
otherwise required under Rule 424(b), the Company will cause the Prospectus,
properly completed, and any amendment or supplement thereto to be filed in a
form approved by the Representatives with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to the Representatives of such timely filing. The
Company will promptly advise the Representatives (1) when the Registration
Statement, if not effective at the Execution Time, shall have become effective,
(2) when the Prospectus, and any amendment or supplement thereto, shall have
been filed (if required) with the Commission pursuant to Rule 424(b) or when any
Rule 462(b) Registration Statement shall have been filed with the Commission,
(3) when, prior to termination of the offering of the Securities, any amendment
to the Registration Statement shall have been filed or become effective, (4) of
any request by the Commission or its staff for any amendment of the Registration
9
Statement, or any Rule 462(b) Registration Statement, or for any amendment or
supplement to the Prospectus or for any additional information, (5) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (6) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order or the suspension of any such qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which
they were made not misleading, or if it shall be necessary to amend the
Registration Statement or amend or supplement the Prospectus to comply with the
Act or the Exchange Act or the respective rules thereunder, the Company promptly
will (1) notify the Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section 5,
an amendment or supplement which will correct such statement or omission or
effect such compliance and (3) supply any amended or supplemented Prospectus to
you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its subsidiaries which will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a copy of
the Registration Statement (without exhibits thereto) and, so long as delivery
of a prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each Preliminary Prospectus and the Prospectus and any amendment or
supplement thereto as the Representatives may reasonably request. The Company
will pay the expenses of printing or other production of all documents relating
to the offering.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such jurisdictions as
the Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay any fee
of the National Association of Securities Dealers, Inc. in connection with its
review of the offering; provided that in no event shall the Company be obligated
to qualify to do business in any jurisdiction where it is not now so qualified
or to take any action that would subject it to service of process in suits,
10
other than those arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(f) During the period beginning on the date hereof and
continuing to and including the date that is 30 days after the time of delivery
for the Securities, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, any preferred securities of the Company that
are substantially similar to the Securities (other than the issuance of
preferred securities pursuant to private placement transactions in which the
purchasers are not permitted to sell such preferred securities until at least 30
days after the delivery of the Securities), without the prior consent of the
Representatives.
(g) The Company will comply with all applicable securities
and other applicable laws, rules and regulations, including, without limitation,
the Sarbanes Oxley Act of 2002, and to use its reasonable best efforts to cause
the Company's directors and officers, in their capacities as such, to comply
with such laws, rules and regulations, including, without limitation, the
provisions of the Sarbanes Oxley Act of 2002.
(h) The Company will not take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in writing to a
later time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 PM New York City time
on such date or (ii) 9:30 AM on the Business Day following the day on which the
public offering price was determined, if such determination occurred after 3:00
PM New York City time on such date; if filing of the Prospectus, or any
amendment or supplement thereto, is required pursuant to Rule 424(b), the
Prospectus, and any such amendment or supplement, will be filed in the manner
and within the time period required by Rule 424(b); and no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx &
Xxxxxxx LLP, counsel for the Company, to have furnished to the Representatives
their opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
11
(i) each of the Company and its subsidiaries,
including the Partnership, has been duly incorporated and is
validly existing as a corporation or other organization in good
standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority
to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the
Prospectus, as amended or supplemented, and is duly qualified to
do business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such
qualification and is subject to no material liability or
disability by reason of the failure to be so qualified in any
jurisdiction;
(ii) all the outstanding shares of capital stock or
partnership interests of each subsidiary of the Company have
been duly and validly authorized and issued and are fully paid
and nonassessable, and, except as otherwise set forth on Exhibit
A or in the Prospectus, as amended or supplemented, all
outstanding shares of capital stock or partnership interests
of such subsidiaries are owned by the Company either directly
or through wholly owned subsidiaries free and clear of any
perfected security interest and, to the knowledge of such
counsel, after due inquiry, any other security interest,
claim, lien or encumbrance;
(iii) the Company's authorized equity capitalization
is as set forth in the Prospectus; the capital stock of the
Company conforms in all material respects to the description
thereof contained in the Prospectus; the outstanding shares of
Common Stock have been duly and validly authorized and issued
and are fully paid and nonassessable; the Securities have been
duly and validly authorized and, when issued and delivered to
and paid for by the Underwriters pursuant to this Agreement,
will be validly issued, fully paid and nonassessable; the
Securities are duly listed, and admitted and authorized for
trading, on the New York Stock Exchange, subject to official
notice of issuance; the certificates for the Securities are in
valid and sufficient form; the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or
other rights to subscribe for the Securities arising by
operation of law or the Company's articles of incorporation or
By-laws, or, to the knowledge of such counsel, under any
agreement by which the Company is bound; and, except as set
forth in the Prospectus or such opinion, as amended or
supplemented, to the knowledge of such counsel, no options,
warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations into
or exchange any securities for, shares of capital stock of or
ownership interests in the Company are outstanding;
(iv) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before
any court or governmental agency, authority or body or any
12
arbitrator involving the Company or any of its subsidiaries or
its or their property of a character required to be disclosed
in the Registration Statement which is not adequately disclosed
in the Prospectus, and there is no franchise, contract or other
document relating to the Company or its subsidiaries of a
character required to be described in the Registration Statement
or Prospectus, or to be filed as an exhibit thereto, which is
not described or filed as required; and the statements included
or incorporated by reference in the Prospectus under the
headings "Capital Stock", "Description of Common Stock",
"Description of Preferred Stock", "Description of Depositary
Shares", insofar as they purport to constitute a summary of the
terms of the Securities, and the statements included or
incorporated by reference in the Prospectus under the heading
"Plan of Distribution" and in the Prospectus Supplement under
the headings "Certain Federal Income Tax Considerations" and
"Underwriting" (other than the information furnished in writing
to the Company by or on behalf of any Underwriter through the
Representatives), insofar as such statements summarize legal
matters, agreements to which the Company is a party, documents
or proceedings discussed therein, are accurate and fair
summaries of such terms, legal matters, agreements, documents or
proceedings;
(v) the Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any
amendments or supplements thereto, pursuant to Rule 424(b) has
been made in the manner and within the time period required by
Rule 424(b); to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened and the Registration Statement and the
Prospectus (other than the financial statements and other
financial and statistical information contained therein, as to
which such counsel need express no opinion), each as amended or
supplemented, comply as to form in all material respects with
the applicable requirements of the Act and the Exchange Act and
the respective rules thereunder; and although counsel assumes no
responsibility for the accuracy, completeness or fairness of
statements made therein except to the extent set forth in
paragraph (iv) above, such counsel has no reason to believe that
on the Effective Date or the date the Registration Statement was
last deemed amended the Registration Statement contained or
contains any untrue statement of a material fact or omitted or
omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus as of its date or on the Closing Date
included or includes any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading (in each case, other than
13
the financial statements and other financial and statistical
information contained therein, as to which such counsel need
express no opinion);
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) the Company is not and, after giving effect to
the offering and sale of the Securities and the application of
the proceeds thereof as described in the Prospectus, will not be
an "investment company" as defined in the Investment Company Act
of 1940, as amended;
(viii) no consent, approval, authorization, filing with
or order of any court or governmental agency or body is required
to be obtained by the Company in connection with the
transactions contemplated herein, except such as have been
obtained under the Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters
in the manner contemplated in this Agreement and in the
Prospectus and such other approvals (specified in such opinion)
as have been obtained;
(ix) the execution and delivery by the Company of
this Agreement, its compliance with all of the provisions hereof
and the consummation by the Company of any of the transactions
herein contemplated, and, to the knowledge of such counsel, the
sale of the Securities being sold by Company and the
consummation by the parties other than the Company of any of the
transactions herein contemplated, will not conflict with, result
in a breach or violation of, or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or its
subsidiaries pursuant to, (i) the charter or by-laws of the
Company or its subsidiaries, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument known to such counsel and to which the Company or any
of its subsidiaries (including the Partnership) is a party or
bound or to which its or their property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree known
to such counsel to be applicable to the Company or its
subsidiaries (including the Partnership) of any court,
regulatory body, administrative agency, governmental body or
arbitrator or other authority having jurisdiction over the
Company or its subsidiaries or any of its or their properties
other than, in the case of clauses (ii) and (iii), such breaches
or violation which, if determined adversely to the Company,
would not reasonably be expected to have a material adverse
effect on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company and
its subsidiaries taken as a whole or on the consummation of the
transactions contemplated herein;
14
(x) to such counsel's knowledge no holders of
securities of the Company have rights to the registration of
such securities under the Registration Statement; and
(xi) The Company has qualified to be taxed as a real
estate investment trust pursuant to Sections 856 through 860 of
the Code for each taxable year since its inception through the
most recently completed fiscal year, and based on assumptions
set forth in the Prospectus and certain representations of the
Company, including but not limited to those set forth in an
Officer's Certificate, the Company's present and contemplated
organization, ownership, method of operation, assets and
income are such that the Company is in a position under
present law to so qualify for the current fiscal year and in
the future.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction
other than the State of Florida or the Federal laws of the
United States, to the extent they deem proper and specified in
such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and public
officials. References to the Prospectus in this paragraph (b)
shall also include any amendments or supplements thereto at
the Closing Date.
(c) The Representatives shall have received from Xxxxxxxx &
Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the issuance
and sale of the Securities, the Registration Statement, the Prospectus (together
with any amendment or supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(d) The Company shall have furnished to the Representatives
a certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company or
two other authorized signatories, dated the Closing Date, to the effect that the
signers of such certificate have carefully examined the Registration Statement,
the Prospectus, any amendments or supplements to the Prospectus and this
Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
15
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the
Prospectus (exclusive of any amendment or supplement thereto),
there has been no material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any amendment or supplement
thereto).
(e) The Company shall have requested and caused KPMG LLP to
have furnished to the Representatives, at the Execution Time and at the Closing
Date, letters, dated respectively as of the Execution Time and as of the Closing
Date, in form and substance satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable rules and regulations adopted by the
Commission thereunder and that, with respect to the letter furnished as of the
Closing Date, they have performed a review of the unaudited interim financial
information of the Company for the six-month period ended June 30, 2004, and as
at June 30, 2004 in accordance with Statement on Auditing Standards No. 100, and
stating in effect that:
(i) in their opinion the audited financial
statements and financial statement schedules and, if applicable,
pro forma financial statements included or incorporated by
reference in the Registration Statement and the Prospectus and
reported on by them comply as to form in all material respects
with the applicable accounting requirements of the Act and the
Exchange Act and the related rules and regulations adopted by
the Commission;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company and
its subsidiaries; their limited review, with respect to the
letter furnished as of the Closing Date, in accordance with
standards established under Statement on Auditing Standards No.
100, of the unaudited interim financial information for the six-
month period ended June 30, 2004, and as at June 30, 2004,
incorporated by reference in the Registration Statement and the
Prospectus; carrying out certain specified procedures (but not
an examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
stockholders, directors and the executive, audit and investment
16
committees of the Company and its subsidiaries; and inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to
December 31, 2003, nothing came to their attention which
caused them to believe that:
(1) any unaudited financial statements
included or incorporated by reference in the
Registration Statement and the Prospectus do not comply
as to form in all material respects with applicable
accounting requirements of the Act and with the related
rules and regulations adopted by the Commission with
respect to financial statements included or incorporated
by reference in quarterly reports on Form 10-Q under the
Exchange Act; and said unaudited financial statements
are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent
with that of the audited financial statements included
or incorporated by reference in the Registration
Statement and the Prospectus;
(2) with respect to the period subsequent to
June 30, 2004, (i) only with respect to the letter
furnished as of the Closing Date, there were any
changes, at a specified date not more than five days
prior to the date of the letter, in the consolidated
capital stock (other than issuances of capital stock in
connection with dividend reinvestment plans, upon
exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon
conversions of convertible securities, in each case
which were outstanding on the date of the latest
balance sheet included or incorporated by reference
in the Prospectus) or any increase in the
consolidated mortgage loans payable or long-term debt
of the Company and its subsidiaries or the
Partnership and its subsidiaries, or any decreases in
total assets or stockholders' equity or other items
specified by the Representatives, or any increases in
any items specified by the Representatives, in each
case as compared with the amounts shown on the June
30, 2004 consolidated balance sheet included or
incorporated by reference in the Registration
Statement and the Prospectus, or (ii) for the period
from July 1, 2004 to such specified date there were
any decreases, as compared with the comparable period
of the preceding year consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by
the Representatives, or any increases in any items
specified by the Representatives, in each case as
compared with the comparable period of the preceding
year and with any other period of corresponding
length specified by the Representatives, except in
17
all instances for changes or decreases set forth in
such letter, in which case the letter shall be
accompanied by an explanation by the Company as to
the significance thereof unless said explanation is
not deemed necessary by the Representatives; or
(3) the information included or incorporated
by reference in the Registration Statement and
Prospectus in response to Regulation S-K, Item 301
(Selected Financial Data), Item 302 (Supplementary
Financial Information), and Item 503(d) (Ratio of
Earnings to Fixed Charges) is not in conformity with the
applicable disclosure requirements of Regulation S-K;
and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain information
of an accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Prospectus and in Exhibit 12
to the Registration Statement, including the information set forth under
the captions "Selected Consolidated Financial Data" in the Prospectus
and the information included or incorporated by reference in Items 1, 6
and 7 of the Company's Annual Report on Form 10-K, incorporated by
reference in the Registration Statement and the Prospectus, and the
information included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or incorporated
by reference in the Company's Quarterly Reports on Form 10-Q,
incorporated by reference in the Registration Statement and the
Prospectus, agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
References to the Prospectus in this paragraph (e) include any
amendment or supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement (exclusive
of any amendment thereof) and the Prospectus (exclusive of any amendment or
supplement thereto), there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (e) of this Section
6 or (ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any amendment or
supplement thereto) the effect of which, in any case referred to in clause (i)
or (ii) above, is, in the sole judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration Statement
18
(exclusive of any amendment thereof) and the Prospectus (exclusive of any
amendment or supplement thereto).
(g) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
(h) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act) or any notice given of any intended or potential
decrease in any such rating.
(i) The Securities shall have been listed and admitted or
authorized for trading on the New York Stock Exchange, subject to official
notice of issuance, and satisfactory evidence of such actions shall have been
provided to the Representatives.
If any of the conditions specified in this Section 6 shall not
have been fulfilled when and as provided in this Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement shall
not be reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Xxxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing
Date.
7. Expenses. (a) The Company covenants and agrees with each
of the several Underwriters that, whether or not the transactions contemplated
in this Agreement are consummated or this Agreement is terminated, (i) the
Company will pay or cause to be paid all registration, filing and stock exchange
or National Association of Securities Dealers fees, all fees and expenses of
complying with securities or blue sky laws, all printing expenses, messenger and
delivery expenses, any fees and disbursements of any counsel retained by the
Company, any fees and disbursements of independent public accountants for the
Company incurred in connection with the registration of the Securities under
the Act, all underwriting discounts and commissions and transfer taxes, if any,
and any premiums and other costs of policies of insurance obtained by the
Company against liabilities arising out of the public offering of the
Securities. It is understood, however, that, except as provided in this Section
and Section 8 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Securities by them, and any advertising expenses connected with any
offers they may make.
19
(b) If the sale of the Securities provided for herein is
not consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally through the
Representatives on demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in any Preliminary Prospectus or the Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein; provided, further, that with respect to any
untrue statement or omission of material fact made in any Preliminary
Prospectus, the indemnity agreement contained in this Section 8(a) shall not
inure to the benefit of any indemnified person from whom the person asserting
any such loss, claim, damage or liability purchased the securities concerned, to
the extent that any such loss, claim, damage or liability of such indemnified
person occurs under the circumstance where it shall have been determined by a
court of competent jurisdiction by final and nonappealable judgment that (w) the
Company had previously furnished copies of the Prospectus to the
Representatives, (x) delivery of the Prospectus was required by the Act to be
made to such person, (y) the untrue statement or omission of a material fact
contained in the Preliminary Prospectus was corrected in the Prospectus and (z)
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such securities to such person, a copy of the
Prospectus. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
20
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, the directors, officers, employees and
agents of the Company, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent (excluding any
provisos) as the foregoing indemnity from the Company to each Underwriter, but
only with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the following statements, as set forth under the heading "Underwriting" of
the Prospectus, constitute the only information furnished by or on behalf of the
several Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus: (i) the list of Underwriters and their respective participation in
the sale of the Securities, and (ii) the sentences related to concessions and
reallowances appearing in the third paragraph of page S-28 of the Prospectus.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of one
such separate counsel (regardless of the number of indemnified parties) if (i)
the use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. An
21
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other, from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
of the Underwriters on the other, in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
it and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the Prospectus. Relative fault shall be determined by reference
to, among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company on the one hand or the
Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, and each director, officer, employee and
22
agent of the Company shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this paragraph
(d).
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities agreed to
be purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Securities set forth opposite their names in Schedule I hereto bears to the
aggregate amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the event that the
aggregate amount of Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate amount of
Securities set forth in Schedule I hereto, the remaining Underwriters shall have
the right to purchase all, but shall not be under any obligation to purchase
any, of the Securities, and if such nondefaulting Underwriters do not purchase
all the Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Company's Common Stock shall have
been suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities, (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other national or international calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus (exclusive of any
amendment or supplement thereto) or (iv) a material disruption has occurred in
commercial banking or securities settlement or clearance services in the United
States.
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
23
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to Citigroup Global Markets Inc., 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General Counsel (fax no.:
(000) 000-0000), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, 0
Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx
Xxxxx (fax no.: (000) 000-0000), and Wachovia Capital Markets, LLC, 000
Xxxxx Xxxxxxx Xx, Xxxxxxxxx, XX 00000, Attention: Investment Grade
Syndicate (fax no.: (000) 000-0000); or if sent to the Company, will be
mailed, delivered or telefaxed to the number and address of the Company
set forth in the Registration Statement.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred
to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commission" shall mean the Securities and Exchange Commission.
24
"DTC" shall mean the Depository Trust Company.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Investment Company Act" shall mean the United States Investment
Company Act of 1940, as amended.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in Section 1(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information, in each case including the documents incorporated
by reference therein pursuant to the applicable form under the Act, as
of the date of such preliminary prospectus
"Prospectus" shall mean the prospectus relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date, in each
case including the documents incorporated by reference therein pursuant
to the applicable form under the Act, as of the date of such prospectus.
.. "Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under
the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
25
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
Regency Centers Corporation
By:_____________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
Citigroup Global Markets Inc.
By: ___________________________________
Name:
Title:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: ___________________________________
Name:
Title:
Wachovia Capital Markets, LLC
By: ___________________________________
Name:
Title:
For themselves and the other several
Underwriters named in Schedule I to
the foregoing Agreement.
SCHEDULE I
----------
Underwriters Number of Depositary
------------ Shares to be Purchased
----------------------
Citigroup Global Markets Inc. ............................................ 1,416,678
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated........................
1,408,333
Wachovia Capital Markets, LLC............................................. 1,408,333
Credit Suisse First Boston LLC............................................ 50,000
Deutsche Bank Securities Inc. ............................................ 50,000
Xxxxxxx, Sachs & Co. ..................................................... 50,000
X.X. Xxxxxx Securities Inc. .............................................. 50,000
Xxxxxxx Xxxxx & Associates, Inc. ......................................... 50,000
X.X. Xxxxxxx & Sons, Inc. ................................................ 33,333
Bear, Xxxxxxx & Co., Inc. ................................................ 33,333
Xxxxxxx Xxxxxx & Co., Inc. ............................................... 33,333
H&R Block Financial Advisors, Inc. ....................................... 33,333
Xxxxxxxxxxx & Co., Inc. .................................................. 33,333
Xxxxx Xxxxxxx & Co. ...................................................... 33,333
RBC Xxxx Xxxxxxxx Inc. ................................................... 33,333
Xxxxxx, Xxxxxxxx & Company, Incorporated.................................. 33,333
TD Waterhouse Investor Services, Inc. .................................... 33,333
Xxxxx Fargo Securities, LLC............................................... 33,333
Advest, Inc. ............................................................. 16,666
Banc of America Securities LLC............................................ 16,666
X. X. Xxxxxxxx & Co. ..................................................... 16,666
Xxxxxx, Xxxxx Xxxxx Incorporated.......................................... 16,666
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. ........................................ 16,666
Xxxxxx Xxxxxxxxxx Xxxxx LLC............................................... 16,666
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated...................................... 16,666
Mesirow Financial, Inc. .................................................. 16,666
Quick & Xxxxxx, Inc. ..................................................... 16,666
Xxxxxx X. Xxxxx & Co. Incorporated........................................ 16,666
Xxxx Xxxx & Co., Inc. .................................................... 16,666
-----------
Total............................................................ 5,000,000
August 4, 2004
Exhibit A
REGENCY CENTERS CORPORATION
Subsidiaries and Equity Ownership Thereof
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
------------------------------------------------------------------------------------------------------------------------------------
Regency Centers Texas, LLC Florida Regency Centers Corporation Member 100%
Regency Centers, L.P. Delaware Regency Centers Corporation General Partner 1.0%
Regency Centers Texas, LLC Limited Partner 96.3%
Outside Investors Limited Partners 2.7%
Columbia Regency Retail Partners, LLC Delaware Regency Centers, L.P. Member 20%
Columbia Perfco Partners, L.P. Member 80%
Columbia Cameron Village, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Retail Addison, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Retail Addison Town Center, Delaware Columbia Retail Addison, LLC General Partner 1%
Limited Partnership Columbia Regency Retail Partners, LLC 99%
Columbia Retail Xxxxx Xxxx, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Retail Deer Grove, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Retail Deer Grove Center, LLC Delaware Columbia Retail Deer Grove, LLC Member 100%
Columbia Retail Dulles, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
A-1
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
------------------------------------------------------------------------------------------------------------------------------------
Columbia Retail Fox Lake, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Retail Fox Lake Crossing, LLC Delaware Columbia Retail Fox Lake, LLC General Partner 1%
Limited Partner 99%
Columbia Retail Geneva Crossing, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Retail Shorewood Crossing, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Retail Special Member (GLP), LLC Delaware Columbia Perfco, L.P. Member 80%
Regency Centers, L.P. 20%
Columbia Retail Xxxxxxx Crossing, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Retail Texas 2, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Retail MacArthur Phase II, LP Delaware Columbia Retail Texas 2, LLC General Partner 1%
Columbia Regency Retail Partners, LLC Limited Partner 99%
Columbia Retail Texas 3, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Retail Sweetwater Plaza, LP Delaware Columbia Retail Texas 3, LLC General Partner 1%
Columbia Regency Retail Partners, LLC Limited Partner 99%
Columbia Retail Washington 1, LLC Delaware Columbia Regency Retail Partners, LLC Member 100%
Columbia Cascade Plaza, LLC Delaware Columbia Retail Washington 1, LLC Member 100%
Macquarie CountryWide-Regency, LLC Delaware Regency Centers, L.P. Member 25%
Macquarie CountryWide (US) Corporation Member 75%
A-2
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
------------------------------------------------------------------------------------------------------------------------------------
MCW-XX XX-Xxxxxxxxx, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC CA-Campus, LLC (fka MCW-RC California, Delaware Macquarie CountryWide-Regency, LLC Member 100%
LLC)
MCW-RC CA-Garden Village, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC CO-Cheyenne, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Anastasia, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Highlands, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-King's, LLC (fka MCW-RC
Florida, LLC) Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Xxxx Haven, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Ocala, LLC (fka MCW-RC Delaware Macquarie CountryWide-Regency, LLC Member 100%
Florida 2, LLC)
MCW-RC FL-Palm Harbour, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL Pebblebrooke, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC FL-Shoppes at 104, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Bethesda Walk, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Braelinn Village, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
A-3
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
------------------------------------------------------------------------------------------------------------------------------------
MCW-RC GA-Brookwood Village, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Buckhead Crossing, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Xxxx Center, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Coweta Crossing, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Xxxxxxx 400, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Xxxxxx Mill Village, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Xxxxxxx Hill, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Lindbergh Crossing, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Orchard, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Northlake Promenade, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Peachtree Parkway Plaza, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Powers Ferry Kroger, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Publix Plaza, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Rose Creek, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Roswell Crossing, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
A-4
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
------------------------------------------------------------------------------------------------------------------------------------
MCW-RC GA-Xxxxxx Crossroads, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Xxxxxxxxxx Crossing, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC GA-Woodstock Crossing, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC KY-Franklin, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC KY-Silverlake, LLC (fka MCW-RC Delaware Macquarie CountryWide-Regency, LLC Member 100%
Kentucky, LLC)
MCW-RC NC-Bent Tree, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC NC-Greystone Village, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC OR-Cherry Park, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC OR-Hillsboro, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC SC-Fairview Market, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC SC-Merchant's, LLC (fka MCW-RC Delaware Macquarie CountryWide-Regency, LLC Member 100%
South Carolina, LLC)
MCW-RC SC-North Pointe, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC SC-Poplar Springs, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC SC-Rosewood, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC TN-Marketplace, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
A-5
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
------------------------------------------------------------------------------------------------------------------------------------
MCW-RC TN-Papermill Plaza, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC Texas GP, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC TX-Hebron, LLC (fka MCW-RC Delaware MCW-RC Texas GP, LLC General Partner .01%
Texas, L.P.) Macquarie CountryWide-Regency, LLC Limited Partner 9.99%
MCW-RC VA-Brookville, LLC (fka MCW-RC Delaware Macquarie CountryWide-Regency, LLC Member 100%
Virginia,LLC)
MCW-RC VA-Somerset Crossing, LLC Delaware Macquarie CountryWide-Regency, LLC Member 100%
MCW-RC WA-Xxxxx, LLC (fka MCW-RC Delaware Macquarie CountryWide-Regency, LLC Member 100%
Washington, LLC)
MCW/MDP-Regency, LLC Delaware Regency Centers, L.P. Member 25%
MCW/MDP, LLC Member 75%
MCD-RC CA-Amerige, LLC Delaware MCW/MDP-Regency, LLC Member 100%
MCD-RC El Cerrito Holdings, LLC Delaware MCW/MDP-Regency, LLC Member 100%
MCD-RC CA-El Cerrito, LLC Delaware MCD-RC El Cerrito Holdings, LLC Member 100%
MCD-RC OH-Milford, LLC Delaware MCW/MDP-Regency, LLC Member 100%
Bear Creek Village Center, LLC Delaware Regency Centers, L.P. Member 50%
Xxxxxx Development and
Real Estate Services, Inc. Member 50%
A-6
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
------------------------------------------------------------------------------------------------------------------------------------
Belleview Square, LLC Delaware Regency Centers, L.P. Member 100%
Xxxxxxx Valley Shopping Center, LLC Delaware Regency Centers, L.P. Member 100%
NSHE Winnebago, LLC Arizona Regency Centers, L.P. Member 100%
Northlake Village Shopping Center, LLC Florida Regency Centers, L.P. Member 100%
OTR/Regency Colorado Realty Holdings, L.P. Ohio Regency Centers, L.P. General Partner 30%
OTR (Nominee for State
Teachers Retirement Board Limited Partner 70%
of Ohio)
OTR/Regency Texas Realty Holdings, L.P. Ohio Regency Centers, L.P. General Partner 30%
OTR (Nominee for State
Teachers Retirement Board Limited Partner 70%
of Ohio)
Queensboro Associates, L.P. Georgia Regency Centers, L.P. General Partner 50%
Real Sub, LLC Limited Partner 50%
Regency Centers Advisors, LLC Florida Regency Centers, L.P. Member 100%
RC CA Santa Xxxxxxx, LLC Delaware Regency Centers, L.P. Member 100%
RC Georgia Holdings, LLC Georgia Regency Centers, L.P. Member 100%
Regency Braemar, LLC Georgia Regency Centers, L.P. Member 100%
Regency Centers Georgia, L.P. Georgia RC Georgia Holdings, LLC General Partner 1%
Regency Centers, L.P. Limited Partner 99%
Regency Xxxxx, LLC Delaware Regency Centers, L.P. Member 100%
A-7
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
------------------------------------------------------------------------------------------------------------------------------------
Regency Remediation, LLC Florida Regency Centers, L.P. Member 100%
Regency Tall Oaks Village Center, LLC Delaware Regency Centers, L.P. Member 100%
Regency Woodlands/Kuykendahl Texas Regency Centers, L.P. General Partner 50%
HEB Grocery Company, LP Limited Partner 50%
R&KS Dell Range, LLC Wyoming Regency Centers, L.P. Member 100%
RRG-RMC-Xxxxx, LLC Delaware Regency Centers, L.P. Member 50%
RMC/Xxxxx, LLC Member 50%
Silver Spring Commons, LLC Delaware Regency Center, L.P. Member 75%
TCH Realty Development Co., LLC Member 25%
T&M Shiloh Development Company Texas Regency Centers, L.P. General Partner 100%
T&R New Albany Development Company, LLC Ohio Regency Centers, L.P. Member 50%
Topvalco Member 50%
RRG Holdings, LLC Florida Regency Centers, L.P. Member 100%
Regency Realty Group, Inc. Florida Regency Centers, L.P. Preferred Stock 100%
Common Stock 7%
RRG Holdings, LLC Common Stock 93%
8th and 20th Chelsea, LLC Delaware Regency Realty Group, Inc. Member 100%
Alameda Bridgeside Shopping Center, LLC Delaware Regency Realty Group, Inc. Member 100%
A-8
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Center, LLC Delaware Regency Realty Group, Inc. Member 100%
Bordeaux Development, LLC Florida Regency Realty Group, Inc. Member 100%
Broadman, LLC Delaware Regency Realty Group, Inc. Member 100%
Centerplace of Greeley, LLC Delaware Regency Realty Group, Inc. Member 100%
The Center at Xxxxxxx Ranch, LLC Delaware Regency Realty Group, Inc. Member 100%
Cherry Street Center, LLC Delaware Regency Realty Group, Inc. Member 100%
Chestnut Powder, LLC Georgia Regency Realty Group, Inc. Member 100%
Clinton Plaza, LLC Delaware Regency Realty Group, Inc. Member 100%
Xxxxx, LLC Florida Regency Realty Group, Inc. Member 100%
East Towne Center, LLC Delaware Regency Realty Group, Inc. Member 50%
Lake XxXxxx, LLC Member 50%
Xxxxxxxx Orange Corp. Tennessee Regency Realty Group, Inc. Common Stock 100%
Fortuna Regency, LLC Delaware Regency Realty Group, Inc. Member 100%
GME/RRG I, LLC Delaware Regency Realty Group, Inc Member 50%
G.M.E. Anaheim, LLC Member 50%
Xxxxxx Canyon Village, LLC Delaware Regency Realty Group, Inc. Member 50%
Community Company, LLC Member 50%
A-9
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
------------------------------------------------------------------------------------------------------------------------------------
Hermitage Development II, LLC Florida Regency Realty Group, Inc. Member 100%
Hermosa Venture, LLC Delaware Regency Realty Group, Inc. Member 70%
Xxx X. Xxxxx, Xx., Xxxxx X.
Xxxxx and Xxxxxx X. Xxxxx Member 30%
Hoadly Regency, LLC Delaware Regency Realty Group, Inc. Member 80%
Xxxx X. Xxxxxxx Member 20%
Hollymead Town Center, LLC Delaware Regency Realty Group, Inc. Member 50%
DRG-Charlottesville Developers, LLC Member 50%
Jog Road, LLC Florida Regency Realty Group, Inc. Member 50%
Xxxxx Capital Group, LLC Member 50%
Southland Centers II, LLC Florida Jog Road, LLC Member 100%
K&G/Regency II, LLC Delaware Regency Realty Group, Inc. Member 50%
K&G Equities VII, LLC 50%
Luther Properties, Inc. Tennessee Regency Realty Group, Inc. Common Stock 100%
Marietta Outparcel, Inc. Georgia Regency Realty Group, Inc. Common Stock 100%
The Marketplace at Briargate, LLC Delaware Regency Realty Group, Inc. Member 100%
Merrimack Shopping Center, LLC Delaware Regency Realty Group, Inc. Member 100%
Middle Tennessee Development, LLC Delaware Regency Realty Group, Inc. Member 100%
Mountain Meadow, LLC Delaware Regency Realty Group, Inc. Member 100%
A-10
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
------------------------------------------------------------------------------------------------------------------------------------
Murieta Gardens Shopping Center, LLC Delaware Regency Realty Group, Inc. Member 100%
New Windsor Marketplace, LLC Delaware Regency Realty Group, Inc. Member 100%
R2 Media, LLC Florida Regency Realty Group, Inc. Member 100%
RRG Net, LLC Florida Regency Realty Group, Inc. Member 100%
Regency Blue Ash, LLC Delaware Regency Realty Group, Inc. Member 100%
Regency Braemar, LLC Delaware Regency Realty Group, Inc. Member 100%
Regency Xxxxx-Xxxxxx, LLC Delaware Regency Realty Group, Inc. Member 50%
Xxxxx Properties, Inc. Member 50%
Regency/DS Ballwin, LLC Missouri Regency Realty Group, Inc. Member 50%
DS Ballwin Partners, Inc. Member 50%
Regency I-45/Spring Cypress Retail, L.P. Delaware Regency Realty Group, Inc. General Partner 90%
HEB Grocery Company, L.P. Limited Partner 10%
Regency Magi, LLC Delaware Regency Realty Group, Inc. Member 50%
Magi, LLC Member 50%
Regency Xxxxxxxx-XxXxxxxx, LLC Delaware Regency Realty Group, Inc. Member 50%
Marinita Development Co. Member 50%
Regency Petaluma, LLC Delaware Regency Realty Group, Inc. Member 100%
Regency Realty Colorado, Inc. Florida Regency Realty Group, Inc Common Stock 80%
Xxxxxxx Xxxxxxxx Common Stock 20%
(see Note 1)
A-11
Nature of % of
Entity Jurisdiction Owner(s) Interest Ownership
------------------------------------------------------------------------------------------------------------------------------------
Regency Realty Group-NE, Inc. Florida Regency Realty Group, Inc. Common Stock 100%
Regency Somerset, LLC Delaware Regency Realty Group, Inc. Member 80%
JDC Somerset, LLC Member 20%
Xxxxx Remount, Inc. South Carolina Regency Realty Group, Inc. Common Stock 100%
Signal Hill Two, LLC Delaware Regency Realty Group, Inc. Member 80%
Xxxx X. Xxxxxxx Member 20%
Signature Plaza, LLC Delaware Regency Realty Group, Inc. Member 100%
Slausen Central, LLC Delaware Regency Realty Group, Inc. Member 100%
Xxxxxxxx Nolensville, LLC Florida Regency Realty Group, Inc. Member 100%
Tinwood, LLC Florida Regency Realty Group, Inc. Member 50%
Member 50%
Tulip Grove, LLC Florida Regency Realty Group, Inc. Member 100%
Valleydale, LLC Delaware Regency Realty Group, Inc. Member 100%
Vista Village, LLC Delaware Regency Realty Group, Inc. Member 50%
Civic Partners Vista Village I, LLC Member 50%
West End Properties, LLC Florida Regency Realty Group, Inc. Member 100%
Note 1: Xxxxxxx Xxxxxxxx is a Regency employee who is the licensed broker for
this entity. Colorado requires that the broker must own a minimum of 20% of the
equity in a licensed entity.
A-12
