<PAGE>
As filed with the Securities and Exchange Commission on February 24, 1999
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
--------------
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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REGENCY CENTERS, L.P.
(Exact name of registrant as specified in its charter)
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<TABLE>
<CAPTION>
Delaware 59-3429602
<S> <C> <C>
(State or other
jurisdiction of
incorporation) (I.R.S. Employer Identification No.)
REGENCY REALTY
CORPORATION Florida 59-3191743
REGENCY OFFICE
PARTNERSHIP, L.P. Delaware 59-3402467
RRC FL FIVE, INC. Florida 59-3248289
RRC ACQUISITIONS, INC. Florida 59-3210155
(Exact name of
Additional Registrants
as specified in their (State of Incorporation of (IRS Employer
Charters) Additional Registrants) Identification No.)
</TABLE>
121 West Forsyth Street, Suite 200
Jacksonville, Florida 32202
(904) 356-7000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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Martin E. Stein, Jr.,
Chairman and Chief Executive Officer
121 West Forsyth Street, Suite 200
Jacksonville, Florida 32202
(904) 356-7000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
Charles E. Commander III
Linda Y. Kelso
Foley & Lardner
200 Laura Street
Jacksonville, Florida 32202
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Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act of 1933, please check the following box. [_]
Calculation of Registration Fee
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<TABLE>
<CAPTION>
Amount Proposed maximum Proposed Maximum Amount of
Title of each class of to be offering price Aggregate registration
securities to be registered Registered per unit Offering Price fee
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<S> <C> <C> <C> <C>
Debt Securities............. $600,000,000 (1) (2) $166,800
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Guarantees of Debt
Securities(3)..............
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Total....................... $600,000,000 100% $600,000,000 $166,800
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</TABLE>
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(1) The proposed maximum offering price per unit will be determined from time
to time by the Registrant in connection with the issuance by the
Registrant of the securities registered hereunder.
(2) Such amount represents the aggregate principal amount of any Debt
Securities.
(3) No separate consideration will be received for the Guarantees.
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This prospectus is not an +
+offer to sell these securities and is not soliciting an offer to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION--DATED , 1999
PROSPECTUS
[LOGO]
$600,000,000
Notes
Regency Centers, L.P.
121 W. Forsyth Street
Suite 200
Jacksonville, Florida 32202
(904) 356-7000
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Regency Centers, L.P. may offer from time to time up to $600,000,000 of
unsecured notes. We will provide the amount, price and terms of the notes in a
prospectus supplement.
The notes will be guaranteed by our affiliates Regency Realty Corporation, RRC
FL Five, Inc., RRC Acquisitions, Inc. and Regency Office Partnership, L.P.
If any agents, underwriters or dealers are involved in the sale of the notes,
we will include the names of such agents, underwriters or dealers and their
commissions or discounts and the net proceeds we will receive from such sale in
a prospectus supplement.
This prospectus may not be used for the sale of notes unless accompanied by a
prospectus supplement.
See "Risk Factors" beginning on page 3 for a discussion of material risks which
you should consider before buying notes.
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These notes have not been approved by the Securities and Exchange Commission or
any state securities commission nor has the Securities and Exchange Commission
or any state securities commission passed upon the accuracy or adequacy of this
prospectus. Any representation to the contrary is a criminal offense.
, 1999
<PAGE>
PROSPECTUS SUMMARY
THE ISSUER
Regency Centers, L.P. is a limited partnership which acquires, owns, develops
and manages neighborhood shopping centers in the eastern half of the United
States. We are the primary entity through which our general partner, Regency
Realty Corporation, owns and operates its properties. Regency Realty is a real
estate investment trust whose common stock is traded on the New York Stock
Exchange.
THE GUARANTORS
Regency Realty, our general partner and 96% owner, will unconditionally
guarantee the notes, jointly and severally with its subsidiaries RRC
Acquisitions, Inc. and RRC FL Five, Inc. and our subsidiary, Regency Office
Partnership, L.P.
NEW DEVELOPMENTS
On September 23, 1998, Pacific Retail Trust agreed to merge with and into
Regency Realty. Pacific Retail Trust owns grocery and drugstore-anchored
shopping centers in the western United States. We anticipate that the merger
will be effective on February 28, 1999.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. Our SEC filings are also available
to the public from the SEC's web site at http://www.sec.gov. Our general
partner also maintains a web site at www.regencyrealty.com.
This prospectus is part of a registration statement we filed with the SEC. The
SEC allows us to "incorporate by reference" the information we file with them,
which means that we can disclose important information to you by referring you
to those documents. The information incorporated by reference is considered to
be part of this prospectus, and later information that we file with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of
1934 until we sell all of the notes:
. Our registration statement on Form 10 filed August 7, 1998 (Commission file
No. 0-24763) as amended by Form 10/A filed October 20, 1998, by Form 10/A-2
filed November 25, 1998 and by Form 10/A-3 filed January 11, 1999;
. Our quarterly reports on Form 10-Q for the quarters ended June 30, 1998
(Commission File No. 1-12298) as amended by Form 10-Q/A filed October 20,
1998, and September 30, 1998 (Commission File No. 0-24763);
. Regency Realty Corporation's annual report on Form 10-K for the fiscal year
ended December 31, 1997 (Commission File No. 1-12298);
. Regency Realty Corporation's quarterly reports on Form 10-Q for the quarters
ended March 31, 1998, June 30, 1998 and September 30, 1998 (Commission File
No. 1-12298);
. Regency Realty Corporation's current reports on Form 8-K dated January 12,
1998 (as amended by form 8-K/A dated March 11, 1998);
. Regency Centers, L.P. pro forma condensed consolidated financial statements
as of September 30, 1998 and for the nine month period ended September 30,
1998 and the year ended December 31, 1997 and the notes related to the
foregoing, on pages P-2 through P-13 of the Regency Centers, L.P.
registration statement on Form S-4 (Commission File No. 333-63723);
. Pacific Retail Trust pro forma condensed consolidated financial statements
as of September 30, 1998 and for the nine months ended September 30, 1998,
and for the year ended December 31, 1997 and the notes related
1
<PAGE>
to the foregoing, on pages P-14 through P-20 of the Regency Centers, L.P.
registration statement on Form S-4 (Commission File No. 333-63723);
. Pacific Retail Trust consolidated financial statements as of December 31,
1997 and 1996 and for each of the years in the two-year period ended
December 31, 1997, and the period from inception through December 31, 1995,
the notes related to the foregoing and the financial statement schedule of
Pacific Retail Trust, on pages F-34 through F-62 and pages S-1 through S-3
of the Regency Centers, L.P. registration statement on Form S-4 (Commission
File No. 333-63723; and
. Pacific Retail Trust unaudited consolidated financial statements as of
September 30, 1998 and for the nine-months ended September 30, 1998 and 1997
and the notes to the foregoing, on pages F-63 through F-81 of the Regency
Centers, L.P. registration statement on Form S-4 (Commission File No. 333-
63723).
You may request a copy of these filings, at no cost, by writing or telephoning
us at the following address:
Ms. Lesley Stocker
Shareholder Communications
Regency Realty Corporation
121 W. Forsyth Street
Suite 200
Jacksonville, FL 32202
(904) 356-7000
You should rely only on the information incorporated by reference or provided
in this prospectus or any supplement. We have not authorized anyone else to
provide you with different information. We are not making an offer of these
notes in any state where the offer is not permitted. You should not assume that
the information in this prospectus or any supplement is accurate as of any date
other than the date on the front of those documents.
2
<PAGE>
RISK FACTORS
The following contains a description of the material risks involved in owning
notes.
Our Debt Financing May Adversely
Affect Payment of Notes
We do not expect to generate sufficient funds from operations to make balloon
principal payments when due on our debt, including the notes. If we are unable
to refinance our debt on acceptable terms, we might be forced to dispose of
properties, which might result in losses, or to obtain financing at unfavorable
terms. Either could reduce the cash flow available to meet debt service
obligations. In addition, if we are unable to meet required mortgage payments,
the property securing the mortgage could be foreclosed upon by the mortgagee,
causing the loss of cash flow from that property to meet debt service
obligations.
Neither Regency Realty's nor our organizational documents limit the amount of
debt that may be incurred. Regency Realty has established a policy limiting
total debt to 50% of total assets at cost and maintaining a minimum debt
service coverage ratio of 2:1. The board of directors of Regency Realty may
amend this policy at any time without the approval of its shareholders or our
limited partners.
Unless otherwise indicated in the prospectus supplement, the indenture for the
notes will permit us to incur additional debt, subject to certain limits. The
degree to which we are leveraged could have important consequences to you,
including the following:
. Leverage could affect our ability to obtain additional financing in the
future to repay the notes or for working capital, capital expenditures,
acquisitions, development or other general corporate purposes, and
. Leverage could make us more vulnerable to a downturn in our business or the
economy generally.
As of September 30, 1998, 36.1% of our properties were encumbered by debt in
the amount of $216.8 million. We also had $167.4 million of unsecured debt
outstanding as of September 30, 1998. Substantially all of our debt is cross-
defaulted, but not cross-collateralized. Our line of credit also imposes
certain covenants which limit our flexibility in obtaining other financing,
such as limitations on floating rate debt and a prohibition on negative pledge
agreements.
Increased Interest Rates May
Reduce Our Cash Flow
We are obligated on floating rate debt. If we do not eliminate our exposure to
increases in interest rates through interest rate protection or cap agreements,
such increases may reduce cash flow and our ability to service our debt. As of
September 30, 1998, we had outstanding debt of $58.6 million subject to
floating interest rates, or 15.2% of our total debt as of that date. We were a
party to 30-day LIBOR contracts with respect to $45.9 million of this floating
rate debt. If interest rates increase significantly, we would consider entering
into interest rate swap or cap agreements with respect to all or a portion of
our remaining floating rate debt.
We are also prohibited by the terms of our unsecured line of credit from
incurring other floating rate debt in excess of 25% of the gross asset value of
our assets unless we obtain interest rate swaps, caps or collars which prevent
the effective interest rate on the portion of such other debt in excess of 25%
from increasing above 9% per year.
Although swap agreements would enable us to convert floating rate liabilities
to fixed rate liabilities and cap agreements would enable us to cap our maximum
interest rate, they would expose us to the risk that the counterparties to such
hedge agreements may not perform, which could increase our exposure to rising
interest rates. Generally, however, the counterparties to our hedging
agreements would be major financial institutions. If we enter into any swap
agreements in the future, decreases in interest rates would increase our
interest expense as compared to the underlying floating rate debt. This could
result in our making payments to unwind such agreements, such as in connection
with a prepayment of the floating rate debt. Cap agreements
3
<PAGE>
would not protect us from increases up to the capped rate.
Effective Subordination of Notes
May Reduce Amounts Available for
Payment of Notes
The notes will be unsecured. Because the holders of secured debt may foreclose
on our assets securing such debt, thereby reducing the cash flow from the
foreclosed property available for payment of unsecured debt, and because the
holders of secured debt would have priority over unsecured creditors in the
event of our liquidation, the notes will be effectively subordinated to our
secured debt. The indenture for the notes permits us to enter into additional
mortgages and incur secured debt provided certain conditions are met. See
"Description of Notes--Covenants". Consequently, in the event of our
bankruptcy, liquidation or similar proceeding, the holders of secured debt will
be entitled to proceed against their collateral, and such collateral will not
be available for payment of unsecured debt, including the notes.
The guarantees of the notes by the guarantors are unsecured obligations of the
guarantors, and (1) are effectively subordinated to mortgage and other secured
debt of the guarantors and (2) rank equally with the guarantors' other
unsecured and unsubordinated debt.
Loss of Revenues from Major Tenant
Could Reduce Our Future Cash Flow
We derive significant revenues from anchor tenants such as Kroger or Publix
that occupy more than one center. Kroger and Publix accounted for 3.3% and
10.5%, respectively, of our rental revenues for the year ended December 31,
1997 and 14.9% and 8.4%, respectively, for the nine months ended September 30,
1998. We could be adversely affected by the loss of revenues in the event a
major tenant:
. files for bankruptcy or insolvency;
. experiences a downturn in its business;
. does not renew its leases as they expire; or
. renews at lower rental rates.
Vacated anchor space, including space owned by the anchor, can reduce rental
revenues generated by the shopping center because of the loss of the departed
anchor tenant's customer drawing power. Most anchors have the right to vacate
and prevent retenanting by paying rent for the balance of the lease term. If
certain major tenants cease to occupy a property, then certain other tenants
are entitled to terminate their leases at the property.
We Could be Adversely Affected by
Poor Market Conditions where
Properties are Geographically
Concentrated
Our performance depends on the economic conditions in markets in which our
properties are concentrated, including Florida and Georgia. Our operating
results could be adversely affected if market conditions, such as an oversupply
of space or a reduction in demand for real estate, in such areas become more
competitive relative to other geographic areas.
Rapid Growth Through Acquisitions
Places Strain on Our Resources
We have pursued extensive growth opportunities. We invested $346.0 million in
acquisitions during 1997 and an additional $317.2 million as of September 30,
1998. This expansion has placed significant demands on our operational,
administrative and financial resources. At the time of its initial public
offering in 1993, Regency Realty had 102 employees and assets of $150 million.
However, as of December 31, 1997, Regency, through Regency Centers, L.P., had
360 employees, an increase of 350%, and assets of $827 million, an increase of
550%.
In addition, acquiring properties using borrowed funds increases our ratio of
total debt to total assets at cost, although we have historically maintained a
ratio of less than 50% in accordance with our internal policy. As of September
30, 1998, our ratio of debt to total assets was 40%. You can expect that the
growth of our real estate portfolio will continue to place a significant strain
on our operational, administrative and financial resources. Our future
performance and ability to repay the notes depends in part on our ability to
attract and retain qualified personnel to manage our growth and operations.
4
<PAGE>
Partnership Structure May Limit
Flexibility to Manage Assets
We are Regency Realty's primary property-owning vehicle. From time to time, we
acquire properties in exchange for limited partnership interests. This
acquisition structure may permit limited partners who contribute properties to
us to defer some, if not all, of the income tax that they would incur if they
sold the property.
Properties contributed to us may have unrealized gain attributable to the
difference between the fair market value and adjusted tax basis in the
properties prior to contribution. As a result, the sale of these properties
could cause adverse tax consequences to the limited partners who contributed
the properties.
Generally, we have no obligation to consider the tax consequences of our
actions to any limited partner. However, we may acquire properties in the
future subject to material restrictions on refinancing or resale designed to
minimize the adverse tax consequences to the limited partners who contribute
such properties. These restrictions could significantly reduce our flexibility
to manage our assets by preventing us from reducing mortgage debt or selling a
property when such a transaction might be in our best interest in order to
reduce interest costs or dispose of an under-performing property.
Unsuccessful Development
Activities Could Reduce Cash Flow
We intend to selectively pursue development activities as opportunities arise.
Such development activities generally require various government and other
approvals. We may not recover our investment in development projects for which
approvals are not received. We will incur risks associated with any such
development activities. These risks include:
. the risk that we may abandon development opportunities and lose our
investment in such developments;
. the risk that construction costs of a project may exceed original estimates,
possibly making the project unprofitable;
. lack of cash flow during the construction period; and
. the risk that occupancy rates and rents at a completed project will not be
sufficient to make the project profitable.
In case of an unsuccessful development project, our loss could exceed our
investment in the project. Also, we have competitors seeking properties for
development, some of which may have greater resources than we have.
If we sustain material losses due to an unsuccessful development project, our
cash flow will be reduced and the creditworthiness of the notes may be
adversely affected.
Uninsured Loss May Adversely
Affect Our Ability to Pay Notes
We carry comprehensive liability, fire, flood, extended coverage and rental
loss insurance with respect to our properties with policy specifications and
insured limits customarily carried for similar properties. We believe that the
insurance carried on our properties is adequate in accordance with industry
standards. There are, however, certain types of losses (such as from
hurricanes, wars or earthquakes) which may be uninsurable, or the cost of
insuring against such losses may not be economically justifiable. If an
uninsured loss occurs, we could lose both the invested capital in and
anticipated revenues from the property, and would still be obligated to repay
any recourse mortgage debt on the property. In that event, our cash flow
available to pay the notes could be reduced.
Highly Leveraged Transaction or
Change In Control May Adversely
Affect Credit-worthiness of Notes
The indenture for the notes contains provisions that are intended to protect
holders of the notes against adverse effects on the creditworthiness of the
notes in the event of a highly leveraged transaction or a significant corporate
transaction (such as the acquisition of securities, merger, the sale of assets
or otherwise) involving us or Regency Realty. However, the indenture does not
contain provisions which protect holders of notes against adverse effects of a
change in control per se, such as the sale of Regency Realty stock or the
election of directors of Regency Realty. Accordingly, there can be no assurance
that we or Regency Realty will not enter
5
<PAGE>
into such a transaction and thereby adversely affect our ability to meet our
obligations under the notes or Regency Realty's obligation under its guarantee.
Moreover, there can be no assurance that a significant corporate transaction
such as an acquisition which complies with the indenture provisions will not
adversely affect the creditworthiness of the notes.
Tax-Driven Actions By Regency
Realty May Reduce Creditworthiness
of Notes
We must rely upon Regency Realty as general partner to manage our affairs and
business. In addition to the risks described above that relate to us, Regency
Realty is subject to certain other risks that may affect its financial
condition, including adverse consequences if Regency Realty fails to qualify as
a real estate investment trust for federal income tax purposes. Regency Realty,
as our general partner, could cause us to take actions which help Regency
Realty maintain its qualification as a real estate investment trust even though
such actions may adversely affect the creditworthiness of the notes. For
example, Regency Realty could cause us to incur debt to enable it to fulfill
the shareholder distribution requirements necessary to maintain its real estate
investment trust qualification. If Regency fails to qualify as a real estate
investment trust, the adverse tax consequences could also reduce its ability to
satisfy its obligations under its guarantee.
SC-USRealty Contractual
Limitations May Adversely Impact
Our Operations and Cash Flow
Security Capital Holdings SA. (together with its parent company, Security
Capital U.S. Realty, "SC-USRealty") owned 11,720,216 shares of common stock of
Regency Realty as of September 30, 1998, constituting 37.5% of Regency Realty's
common stock outstanding on that date (including options and convertible
securities on a fully diluted basis). Upon the merger of Pacific Retail Trust
into Regency Realty, SC-USRealty will own 52.3% of Regency's common stock on a
fully diluted basis. A proposed amendment to Regency Realty's Articles of
Incorporation will permit SC-USRealty to increase its ownership of Regency
Realty common stock after the merger to up to 60% on a fully diluted basis. See
"--Prohibitions on Investments by Non-U.S. Investors Limits Ability to Raise
Capital."
SC-USRealty is Regency Realty's single largest shareholder and has
participation rights entitling it to maintain its percentage ownership of the
common stock. SC-USRealty has the right to nominate the number of the directors
of Regency Realty's board of directors proportionate to its ownership in
Regency Realty, rounded down to the nearest whole number, but not more than 49%
of the board. Although certain "standstill" provisions preclude SC-USRealty
from owning more than 60% of Regency Realty common stock on a fully diluted
basis and limit SC-US Realty's ability to vote its shares, SC-USRealty has
substantial influence over Regency Realty's affairs. If the standstill period
or any standstill extension term ends, SC-USRealty could be in a position to
control the election of the board or the outcome of any corporate transaction
or other matter submitted to the shareholders for approval.
Regency Realty has agreed with SC-USRealty to certain limitations on Regency
Realty's operations, including restrictions relating to:
. incurrence of total debt exceeding 60% of the gross book value of Regency
Realty's consolidated assets,
. investments in properties other than certain shopping centers,
. the amount of assets that it owns indirectly through other entities,
. the amount of assets managed by third parties,
. the amount of passive income produced by Regency Realty and
. entering into joint ventures or similar arrangements.
These restrictions, which are intended to permit SC-USRealty to comply with
certain requirements of the Internal Revenue Code, and other countries' tax
laws applicable to foreign investors, limit somewhat Regency Realty's
flexibility to structure transactions that might otherwise be advantageous to
Regency Realty or to us. Although we do not believe that these limitations will
materially impair our ability to conduct our business, there can be no
assurance that these limitations will not adversely affect our operations in
the future, including causing a reduction in the cash flow available for
payment of the notes.
6
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Prohibitions on Investments by
Non-US. Investors Limit Ability to
Raise Capital
Section 5.14 of the Articles of Incorporation of Regency Realty presently
invalidates any issuance or transfer of shares that would (1) result in 5% or
more of the fair market value of Regency Realty's capital stock being held by
non-U.S. persons excluding SC-USRealty, or (2) result in 50% or more of such
fair market value being held by non-U.S. persons, including SC-USRealty. SC-
USRealty has the right to waive any of these restrictions.
At the request of SC-USRealty, Regency's board of directors has proposed
amendments to Section 5.14, subject to consummation of the Pacific Retail Trust
merger, to expressly permit SC-USRealty to increase its ownership to 60% of
Regency Realty's common stock on a fully diluted basis, even though Regency
Realty will cease to be a domestically controlled REIT as a result of the
merger. The proposed amendments to Section 5.14 of Regency Realty's Articles
also contains prohibitions on transfers of shares which will:
. preserve Regency Realty's ability to requalify as a domestically controlled
REIT if ownership by non-U.S. persons drops below 50% by value of Regency
Realty's outstanding capital stock, and
. ensure that once Regency Realty returns to the status of a domestically
controlled REIT, it will remain one unless such restrictions are waived by
SC-USRealty.
The transfer restrictions summarized above will limit Regency Realty's ability
to raise capital from non-U.S. persons and therefore may reduce the capital
available for payment of the notes.
We Face Competition from Numerous
Sources
The ownership of shopping centers is highly fragmented, with less than 10%
owned by real estate investment trusts. We face competition from other real
estate investment trusts in the acquisition, ownership and leasing of shopping
centers as well as from numerous small owners. We compete to develop shopping
centers with other real estate investment trusts engaged in development
activities as well as with local, regional and national real estate developers.
We compete in the acquisition of properties through proprietary research that
identifies opportunities in markets with high barriers to entry and higher-
than-average population growth and household income. We seek to maximize rents
per square foot by establishing relationships with supermarket chains that are
first or second in their markets and leasing non-anchor space in multiple
centers to national or regional tenants. We compete to develop properties by
applying our proprietary research methods to identify development and leasing
opportunities and by pre-leasing an average of 85% of a center before beginning
construction.
There can be no assurance, however, that other real estate owners or developers
will not utilize similar research methods and target the same markets and
anchor tenants that we target, or that such entities may successfully control
these markets and tenants to our exclusion. If we cannot successfully compete
in our targeted markets, our cash flow, and therefore our ability to pay the
notes, may be adversely affected.
Costs of Environmental Remediation
Could Reduce Our Cash Flow
Under various federal, state and local laws, an owner or manager of real estate
may be liable for the costs of removal or remediation of certain hazardous or
toxic substances on such property. These laws often impose liability without
regard to whether the owner knew of, or was responsible for, the presence of
hazardous or toxic substances. The cost of any required remediation and the
owner's liability therefor could exceed the value of the property and/or the
aggregate assets of the owner.
We have approximately 22 properties and three guarantors of the notes own 4
additional properties that will require or are currently undergoing varying
levels of environmental remediation. These remediations are not expected to
have a material financial effect on us or the guarantors due to financial
statement reserves and various state-regulated programs that shift the
responsibility and cost for remediation to the state.
The presence of such substances, or the failure to properly remediate hazardous
or toxic substances, may adversely affect our ability to sell or rent a
contaminated property or borrow using such property as collateral. Any of these
developments could reduce the cash flow available for payment of the notes.
7
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USE OF PROCEEDS
The net proceeds from the sale of the notes will be used for general corporate
purposes, which may include the repayment of outstanding indebtedness, the
acquisition of shopping centers as suitable opportunities arise, the expansion
and improvement of properties in our portfolio and development costs for new
centers. If we use the net proceeds for another purpose, we will include that
information in a prospectus supplement.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
Our ratios of earnings to fixed charges for the nine months ended September 30,
1998 and the years ended December 31, 1997, 1996, 1995 and 1994 were 2.2, 2.4,
1.7, 1.0 and 1.0 respectively.
The ratios of earnings to fixed charges were computed by dividing earnings by
fixed charges. For purposes of computing these ratios, earnings have been
calculated by adding fixed charges (excluding capitalized interest) to net
income from operations, excluding non-recurring gains and losses from the sale
of operating real estate. Fixed charges consist of interest costs (whether
expensed or capitalized) and amortization of deferred debt costs.
Prior to Regency Realty's initial public offering in November 1993, Regency
Realty's predecessor, The Regency Group, Inc., was privately held, and its
properties were encumbered by significantly higher levels of debt bearing
interest at higher rates than the levels and rates applicable to Regency Realty
and us. Regency Realty's predecessor had net losses for the period from January
1, 1993 to November 4, 1993, and for the years ended December 31, 1992, 1991
and 1990, and earnings were not adequate to cover fixed charges during such
periods. The ratios of earnings to fixed charges for such periods are not
meaningful in light of the equity provided by Regency Realty's initial public
offering and the concurrent refinancing of the predecessor's mortgage debt.
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REGENCY REALTY AND THE ISSUER
We acquire, own, develop and manage neighborhood shopping centers in targeted
markets. As a result of our formation in 1996 and the consolidation of
substantially all of our neighborhood shopping centers in early 1998, we are
the primary entity through which Regency Realty Corporation ("Regency Realty")
owns and operates its properties and through which Regency Realty intends to
expand its ownership and operation of properties. As of September 30, 1998, we
owned, directly or indirectly, 104 of Regency Realty's 125 properties in the
eastern half of the United States, containing approximately 11.5 million square
feet of gross leasable area ("GLA"). As of September 30, 1998, Regency Realty
had an investment in real estate of approximately $1.1 billion.
As of September 30, 1998, approximately 60% of Regency Realty's 14.2 million
square feet of GLA was located in Georgia and Florida. Regency Realty's
shopping centers (excluding centers under development) were approximately 92.7%
leased as of September 30, 1998.
On September 23, 1998, Pacific Retail Trust agreed to merge with and into
Regency Realty. Pacific Retail Trust owns grocery and drugstore-anchored
shopping centers in the western United States. We anticipate that the merger
will be effective on February 28, 1999.
Operating And Investment Philosophy
Regency Realty's key operating and investment objective is to create long-term
shareholder value by:
. growing its high quality real estate portfolio of grocery-anchored
neighborhood shopping centers in attractive infill markets;
. maximizing the value of the portfolio through its "Retail Operating System,"
developed in conjunction with SC-USRealty, which incorporates research based
investment strategies, value-added leasing and management systems, and
customer-driven development programs; and
. using conservative financial management and Regency Realty's substantial
capital base to access the most cost effective capital to fund Regency
Realty's growth.
Management believes that the key to achieving its objective is its single focus
on, and growing critical mass of, quality grocery-anchored neighborhood
shopping centers. In the opinion of management, our premier platform of
shopping centers in targeted markets, our proprietary research capabilities,
our value enhancing Retail Operating System, our cohesive and experienced
management team and our access to competitively priced capital enable us to
maintain a competitive advantage over other operators.
Regency Realty believes that ownership of the approximately 30,000 shopping
centers throughout the United States is highly fragmented, with less than 10%
owned by REITs, and that many centers are held by unsophisticated and
undercapitalized owners. Regency Realty has identified approximately 1,000
centers in its target markets as potential acquisition opportunities, of which
less than 10% are owned by REITs. As a result, Regency Realty believes that an
opportunity exists for it to be a consolidating force in the industry. In
addition, Regency Realty believes that through proprietary demographic research
and targeting, its portfolio and tenant mix can be customized for and marketed
to national and regional retailers, thereby producing greater sales and a
value-added shopping environment for both retailer and shopper.
Our shopping center properties feature some of the most attractive
characteristics in the industry:
. an average age of 7 years;
. an average remaining grocery-anchor lease term of 15 years; and
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. an average grocery-anchor size of 48,000 square feet (45% of the square
footage of the grocery-anchored centers on average).
Grocery-Anchored Infill Strategy
We focus our investment strategy on grocery-anchored infill shopping centers.
Infill locations are situated in densely populated residential communities
where there are significant barriers to entry, such as zoning restrictions,
growth management laws or limited availability of sites for development or
expansions. We are focused on building a platform of grocery-anchored
neighborhood shopping centers because grocery stores provide convenience
shopping for daily necessities, generate foot traffic for adjacent "side shop"
tenants and should be better able to withstand adverse economic conditions. By
developing close relationships with the leading supermarket chains, we believe
we can attract the best "side shop" merchants and enhance revenue potential.
Based on our research, at September 30, 1998, 70 of our shopping centers were
anchored by the grocery store with the first or second leading market share, as
measured by total market sales.
Research Driven Market Selection
We have identified 21 markets in the eastern half of the United States as
target markets. These markets were selected because, in general, they offer
greater growth in population, household income and employment than the national
averages. In addition, we believe that we can achieve "critical mass" in these
markets (defined as owning or managing 4 to 5 shopping centers) and that we can
generate sustainable competitive advantages, through long-term leases to the
predominant grocery-anchor and other barriers to entry from competition. Within
these markets, our research staff further defines and selects submarkets and
trade areas based on additional analysis of the above data. We then identify
target properties and their owners (including development opportunities) within
these submarkets and trade areas based on 3-mile radius demographic data and
rank potential properties for purchase. Our properties are currently in
submarkets with an average 3-mile population of 69,000, average household
income of $62,000 and projected 5-year population growth of 12%.
Retail Operating System
Our Retail Operating System drives our value-added operating strategy. Our
Retail Operating System is characterized by:
. proactive leasing and management;
. value enhancing remerchandising initiatives;
. our "preferred customer initiative"; and
. a customer-driven development and redevelopment program.
Proactive leasing and management
Our integrated approach to property management strengthens our leasing and
management efforts. Property managers are an integral component of the
acquisition and integration teams. Thorough, candid tenant interviews by
property managers during acquisition due diligence allow us to quickly assess
both problem areas as well as opportunities for revenue enhancement prior to
closing. Property managers are responsible not only for the general operations
of their centers, but also for coordinating leasing efforts, thereby aligning
their interests with ours. In addition, our information systems allow managers
to spot future lease expirations and to proactively market and remerchandise
spaces several years in advance of such expirations.
Value enhancing remerchandising initiatives
We believe that certain shopping centers underserve their customers, reducing
foot traffic and negatively affecting the tenants located in the shopping
center. In response, we are initiating a remerchandising program which is
directed at obtaining the optimum mix of tenants offering goods, personal
services and entertainment and dining options in each of our shopping centers.
By re-tenanting shopping centers with tenants that more effectively service the
community, we expect to increase sales, and therefore the value of our shopping
centers.
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Preferred customer initiative
We have established a preferred customer initiative with dedicated personnel
whose goal is to establish new and strengthen existing strategic relationships
with successful retailers at the national, regional and local levels. We
achieve this goal by establishing corporate relationships, negotiating standard
lease forms and working with the preferred customers to match expansion plans
with future availability in our shopping centers. We monitor retail trends and
the operating performance of these preferred customers. Management expects the
benefits of the preferred customer initiative to improve the merchandising and
performance of the shopping centers, establish brand recognition among leading
operators, reduce turnover of tenants and reduce vacancies. We currently have
identified and are developing relationships with 45 preferred customers,
including Radio Shack, GNC, Hallmark Cards, Mailboxes, Etc. and Starbucks
Coffee, and continue to target additional tenants with which to establish
preferred customer relationships.
Customer-driven development and redevelopment program
We conduct our development and redevelopment program in close cooperation with
our major customers, including Kroger, Publix and Eckerd. We use our
development capabilities to service these customer's growth needs by building
or re-developing modern properties with state of the art supermarket formats
that generate higher returns for us under new long-term leases. During 1997, we
began development on 20 retail projects, including new developments,
redevelopments and build-to-suits. Upon completion, we will have invested
$77.4 million in these projects. In 1998, we began development on 21 retail
projects, including new developments, redevelopments and build-to-suits. Upon
completion, we will have invested $139 million in these projects. We manage our
development risk by obtaining signed anchor leases prior to beginning
construction.
Acquisition Track Record
We have grown our asset base significantly through acquisitions over the last
several years, acquiring properties totaling $101.7 million in 1996, $346.0
million in 1997 and $314.8 million through September 30, 1998. Through these
acquisitions, we have diversified geographically from our predominantly
Florida-based portfolio and established a presence in many of our target
markets. Upon identifying an acquisition target, we utilize expertise from all
of our functional areas, including acquisitions, due diligence and property
management, to determine the appropriate purchase price and to develop a
business plan for the center and design an integration plan for the management
of the center. We believe that our established acquisition and integration
procedures produce higher returns on our portfolio, reduce risk and position us
to capitalize on consolidation in the shopping center industry.
Capital Strategy
We intend to maintain a conservative capital structure designed to enhance
access to capital on favorable terms, to allow growth through development and
acquisition and to promote future earnings growth. We have adopted a policy of
limiting total indebtedness to 50% of total assets at cost and maintaining a
minimum debt service coverage ratio of 2:1.
As of September 30, 1998, 36.1% of our properties were encumbered by debt in
the amount of $216.8 million. We also had $167.4 million of unsecured debt
outstanding as of September 30, 1998. Substantially all of our debt is cross-
defaulted, but not cross-collateralized. Under our $300 million unsecured line
of credit, which will be increased to $635 million upon completion of the
Pacific Retail Trust merger, we are required to comply with certain financial
and other covenants customary with this type of unsecured financing. These
financial covenants include (i) maintenance of minimum net worth, (ii) ratio of
total liabilities to gross asset value, (iii) ratio of secured indebtedness to
gross asset value, (iv) ratio of EBITDA to interest expense, (v) ratio of
EBITDA to debt service, preferred stock distributions and reserve for
replacements, and (vi) ratio of unencumbered net operating income to interest
expense on unsecured indebtedness. In addition, we may not enter into a
negative pledge agreement with another lender and may not incur other floating
rate debt in excess of 25% of gross asset value without interest rate
protection. The line is used primarily to finance the acquisition and
development of real estate, but is available for general working capital
purposes.
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Since Regency Realty's initial public offering in 1993, we and Regency Realty
have financed our growth in part through a series of public and private
offerings of Regency Realty equity and private placement of our partnership
units totaling, as of September 30, 1998, approximately $560.7 million, as
consideration for acquisitions.
SC-USRealty Alliance
In June 1996, Regency Realty entered into a strategic alliance with Security
Capital Holdings, S.A. (together with its parent company, Security Capital U.S.
Realty, "SC-USRealty"). As a result of such alliance, SC-USRealty became
Regency Realty's principal shareholder. In addition to SC-USRealty's initial
investment in 1996, SC-USRealty has participated in subsequent Regency Realty
equity issuances pursuant to participation rights. SC-USRealty beneficially
owned 46.0%, or 37.5% including options and convertible securities on a fully
diluted basis, of Regency Realty's outstanding common stock as of September 30,
1998. Upon completion of the proposed merger of Pacific Retail Trust into
Regency Realty, SC-USRealty will own approximately 59.4% of Regency Realty's
outstanding common stock, or 52.3% on a fully diluted basis. SC-USRealty's
stockholders agreement with Regency Realty, which includes provisions limiting
SC-USRealty's stock ownership for a specific period of time, will be amended at
the effective time of the Pacific Retail Trust merger. Under such amendment,
SC-USRealty will have the right to own up to 60% of Regency Realty's common
stock on a fully diluted basis. In connection with its investment, SC-USRealty
has placed two of its nominees on Regency Realty's thirteen-member board of
directors.
SC-USRealty endeavors to obtain strategic ownership positions in leading real
estate operating companies in the United States. SC-USRealty's investments
focus on real estate operating companies in which opportunities exist to
enhance asset cash flow by combining a strategically focused asset portfolio
with marketing and other strategies that meet the needs of customers. Regency
Realty's relationship with SC-USRealty combines SC-USRealty's commitment to in-
depth market research, tested operating systems and access to global capital
with Regency Realty's market presence, operating skills and grocery-anchored
real estate platform. This relationship provides Regency Realty with access to
financial and strategic resources and differentiates Regency Realty from its
competitors in the retail shopping center industry.
THE GUARANTORS
The following provides certain material information with respect to each
guarantor of the notes.
Regency Realty, a Florida corporation, commenced operations as a real estate
investment trust in 1993 with the completion of its initial public offering,
and was the successor to the real estate business of The Regency Group, Inc.
which had operated since 1963. Regency Realty is our sole general partner and
approximately 96% owner as of September 30, 1998. As of September 30, 1998,
Regency Realty was obligated on $311.3 million secured debt and $167.4 million
unsecured debt.
RRC FL Five, Inc., a Florida corporation, is a wholly-owned subsidiary of
Regency Realty which owns a single shopping center with 102,876 square feet of
GLA. RRC FL Five, Inc. was formed in June 1994. As of September 30, 1998, RRC
FL Five, Inc., was obligated on $8.6 million of secured debt.
RRC Acquisitions, Inc., a Florida corporation formed in November 1993, is a
wholly-owned subsidiary of Regency Realty. RRC Acquisitions, Inc. owns two
shopping centers with an aggregate of 436,273 square feet of GLA and also holds
acquisition contracts for us and Regency Realty. As of September 30, 1998, RRC
Acquisition, Inc. had no long-term debt.
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Regency Office Partnership, L.P. is a Delaware limited partnership formed in
November 1996, in which Regency Realty owns a 1% limited partner's interest and
the Partnership owns a 99% general partner's interest. Regency Office
Partnership, L.P. owns two shopping centers with an aggregate of 454,010 square
feet of GLA. As of September 30, 1998, Regency Office Partnership, L.P. had no
long term debt.
Each of the guarantors is also a guarantor of our $300 million unsecured line
of credit, which will be increased to $635 million upon completion of the
Pacific Retail Trust merger, as well as our $100 million 7 1/8% Notes Due 2005.
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DESCRIPTION OF THE NOTES
This prospectus describes certain general terms and provisions of our notes.
When we offer to sell a particular series of notes, we will describe the
specific terms of those notes in a supplement to this prospectus. We will also
indicate in the supplement whether the general terms described in this
prospectus apply to a particular series of debt securities. Accordingly, for a
description of the terms of a particular issue of notes, you should read both
the applicable prospectus supplement and the following description.
The notes will be issued under an indenture dated as of , 1999,
as amended or supplemented from time to time, between Regency Centers, L.P.,
the guarantors of the notes and First Union National Bank, as trustee. We have
summarized select portions of the indenture below. The summary is not complete.
The form of the indenture has been incorporated by reference as an exhibit to
the registration statement. You should read the indenture for provisions that
may be important to you. In the summary below, we have included references to
the section numbers of the indenture so that you can easily locate these
provisions. Capitalized terms used in the summary have the meaning specified in
the indenture. The indenture is governed by the Trust Indenture Act of 1939, as
amended.
General
The notes will be our direct unsecured obligations. We can issue an unlimited
amount of notes under the indenture in one or more series. The terms of each
series of notes will be established by or pursuant to a resolution of the board
of directors of our general partner or as established in the indenture. We may
issue notes of one series at different times and we may issue additional notes
of a series without the consent of the holders of such series.
The prospectus supplement relating to any series of notes being offered will
contain the specific terms thereof, including, without limitation:
(1) the title of the notes;
(2) any limit on the aggregate principal amount of the notes;
(3) the person to whom interest is payable, if other than the person in
whose name the note is registered on the regular record date for such
interest;
(4) the date or dates on which the principal of the notes will be payable;
(5) the rate or rates at which the notes will bear interest, if any, the
date or dates from which interest will accrue, the dates on which
interest will be payable, the regular record dates for such interest
payment dates, and the basis upon which interest shall be calculated if
other than a 360 day year of twelve 30 day months;
(6) the place or places where the principal of, premium or interest on such
notes will be payable, if other than our office maintained for that
purpose in Jacksonville, Florida or the borough of Manhattan in New
York;
(7) the period or periods within which, the price or prices at which and
the terms and conditions upon which we may redeem the notes;
(8) any obligation we have to redeem or purchase the notes under any
sinking fund or analogous provision or at the option of a holder of
notes, and the dates on which and the price or prices at which we will
repurchase notes at the option of holders and other terms and
conditions of these repurchase obligations;
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(9) whether the amount of payments of principal of, premium or interest on
such notes will be determined by reference to an index, formula or
other method and the manner in which such amounts will be determined;
(10) if other than U.S. dollars, the currency, currencies or currency units
in which principal of, premium and interest on the notes will be paid;
(11) if payments of principal of, premium or interest on the notes will be
made in a currency or currency unit other than that in which the notes
are stated to be payable, at our election or at the election of
holders of notes, the currency or currency units which may be elected,
the terms of the election and the manner for determining the amount
payable upon such an election;
(12) if other than the principal amount of the notes, the portion of the
principal amount of the notes payable upon acceleration of the
maturity date;
(13) if the principal amount payable at the maturity of the notes cannot be
determined prior to maturity, the amount which shall be deemed to be
the principal amount of such notes prior to maturity;
(14) whether the notes will be issued in certificated and/or book-entry
form;
(15) any additions to or changes from the terms of such notes with respect
to the events of default, covenants or other terms of the indenture;
and
(16) any other terms of such notes not inconsistent with the provisions of
the indenture.
The notes may provide for less than the entire principal amount thereof to be
payable upon declaration of acceleration of the maturity thereof. Special
federal income tax, accounting and other considerations applicable to these
notes will be described in the applicable prospectus supplement.
Denomination, Registration, Transfer and Book-Entry Procedures
Denomination
The notes of any series will be issued in denominations of $1,000 and even
multiples of $1000, unless we describe other denominations in the applicable
prospectus supplement. We will only issue the notes in fully registered form,
without interest coupons. We will not issue notes in bearer form.
Registration and Transfer
You may transfer or exchange the notes of any series at the office of the
trustee. No service charge will be made for any transfer or exchange of notes,
but we may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with the transfer or exchange. If we
designate any transfer agent (in addition to the trustee) in the applicable
prospectus supplement, we may at any time change such designation or change the
location through which such transfer agent acts, except that we must maintain a
transfer agent in each place of payment for such notes. We may at any time
designate additional transfer agents with respect to any series of notes.
Book Entry Procedures
Global Notes. Notes may be represented by one or more notes in global form (a
"global note"). Global notes will be deposited upon issuance with the trustee
as custodian for The Depository Trust Company
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("DTC"), in New York, New York, and registered in the name of DTC or its
nominee. Each global note will be credited to the account of a direct or
indirect participant in DTC as described below.
Except as set forth below, a global note may be transferred, in whole and not
in part, only to another nominee of DTC or to a successor of DTC or its
nominee. Beneficial interests in a global note may not be exchanged for notes
in certificated form except as described below under "--Exchanges of Book-Entry
Notes for Certificated Notes."
Exchanges of Book-Entry Notes for Certificated Notes. A beneficial interest in
a global note may not be exchanged for a note in certificated form unless (1)
DTC (x) notifies us that it is unwilling or unable to continue as depositary
for the global note or (y) has ceased to be a clearing agency registered under
the Securities Exchange Act of 1934, and in either case we fail to appoint a
successor depositary, (2) we, at our option, notify the trustee in writing that
we elect to issue the notes in certificated form, (3) an event of default with
respect to the notes has occurred and is continuing or (4) other circumstances
have occurred that were specified for this purpose in the designation of a
series of notes. In all cases, certificated notes delivered in exchange for any
global note will be registered in the names and issued in the denominations
requested by the depositary (in accordance with its customary procedures). Any
such exchange will be effected through the DWAC System. An adjustment will be
made in the records of the note registrar to reflect the decrease in the
principal amount of the relevant global note.
Certain Book-Entry Procedures. DTC has indicated that it intends to follow the
following operations and procedures with respect to book-entry notes. DTC may
change these procedures from time to time. We are not responsible for these
operations and procedures. You should contact DTC or their participants
directly to discuss these matters.
DTC has advised us as follows: DTC is a limited purpose trust company organized
under the laws of the State of New York, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the Uniform Commercial
Code and a "clearing agency" registered under Section 17A of the Securities
Exchange Act of 1934. DTC was created to hold securities for its participants
and facilitate the clearance and settlement of securities transactions between
participants through electronic book-entry changes in accounts of its
participants. These book-entry procedures eliminate the need for physical
transfer and delivery of certificates. Participants include securities brokers
and dealers, banks, trust companies and clearing corporations and other
organizations. Indirect access to the DTC system is available to other entities
such as banks, brokers, dealers and trust companies that clear through or
maintain a custodial relationship with a participant, either directly or
indirectly ("indirect participants").
DTC has advised us that, upon the issuance of a global note under its current
practice, DTC credits the respective principal amounts of the beneficial
interests represented by such global note to the DTC accounts of the
participants through which such interests are to be held. Ownership of
beneficial interests in the global notes will be shown on, and the transfer of
that ownership will be effected only through, records maintained by DTC or its
nominees (with respect to interests of participants) and the records of
participants and indirect participants (with respect to interests of persons
other than participants).
AS LONG AS DTC, OR ITS NOMINEE, IS THE REGISTERED HOLDER OF A GLOBAL NOTE, DTC
OR SUCH NOMINEE, AS THE CASE MAY BE, WILL BE CONSIDERED THE SOLE OWNER AND
HOLDER OF THE NOTES REPRESENTED BY SUCH GLOBAL NOTE FOR ALL PURPOSES UNDER THE
INDENTURE AND THE NOTES.
Except in the limited circumstances described above under "--Exchanges of Book-
Entry Notes for Certificated Notes", owners of beneficial interests in a global
note may not have any portions of the global note registered in their names,
will not receive physical delivery of notes in definitive form and will not be
considered the owners or holders of the global note (or any note represented
thereby).
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The laws of some states require that certain persons take physical delivery in
definitive form of securities that they own. The ability to transfer beneficial
interests in a global note to such persons may be limited to that extent.
Because DTC can act only on behalf of its participants, which in turn act on
behalf of indirect participants and certain banks, the ability of a person
having a beneficial interest in a global note to pledge such interest to
persons that do not participate in the DTC system, or take other actions in
respect of such interest, may be affected by the lack of a physical
certificate.
Payments of the principal of, premium, if any, and interest on global notes
will be made to DTC or its nominee as the registered owner of the global note.
Neither we, the guarantors, the trustee nor our respective agents will be
responsible or liable for maintaining, supervising or reviewing records
relating to or payments made on account of beneficial ownership interests in
global notes.
We expect that DTC or its nominee, upon receipt of any payment of principal or
interest in respect of a global note, will immediately credit participants'
accounts with payments in amounts proportionate to their respective beneficial
interests in such global note as shown on the records of DTC or its nominee. We
also expect that payments by participants to owners of beneficial interests in
the global note held through such participants will be governed by standing
instructions and customary practices, as is the case with securities held for
the accounts of customers registered in "street name". Such payment will be the
responsibility of the participants.
Interests in a global note will trade in DTC's settlement system. Secondary
market trading activity in such interests will therefore settle in immediately
available funds, subject to the rules and procedures of DTC and its
participants. Transfers between participants in DTC will be effected in
accordance with DTC's procedures and will be settled in same-day funds.
DTC has advised us that it will take any action permitted to be taken by a
holder of notes (including the presentation of notes for exchange as described
below) only at the direction of one or more participants to whose DTC account
interests in global notes are credited. However, if there is an event of
default under the notes, the global notes will be exchanged for notes in
certificated form and distributed to DTC's participants.
Although DTC has agreed to these procedures in order to facilitate transfers of
beneficial ownership interests in global notes among participants of DTC, it is
under no obligation to perform such procedures, and such procedures may be
discontinued at any time. Neither us, the guarantors, the trustee nor our
respective agents are responsible for the performance by DTC, its participants
or indirect participants of their obligations under the rules and procedures
governing their operations.
Optional Redemption
If indicated in the applicable prospectus supplement, we may redeem the notes
at any time, at our option, in whole or in part from time to time, at a
redemption price equal either to (A) the sum of (i) the principal amount of the
notes being redeemed plus accrued interest thereon to the redemption date and
(ii) the Make-Whole Amount, if any, with respect to such notes (or portion
thereof) or (B) such other redemption price which is established in accordance
with the indenture. ((S) 1101) We will redeem notes in accordance with the
following procedures, unless different procedures are set forth in the
applicable prospectus supplement.
If notice of redemption has been given and we have provided the funds for the
redemption of the notes to be redeemed on the applicable redemption date, such
notes will cease to bear interest on the redemption date. The only right of the
holders of such note will then be to receive payment of the redemption price.
((S) 1107)
Notice of any optional redemption of any note will be given to holders between
30 and 60 days prior to the redemption date. The notice of redemption will
specify, among other items, the redemption price and the principal amount of
the notes held by such holder to be redeemed. ((S) 1105)
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We will notify the trustee at least 60 days prior to giving notice of
redemption (or a shorter period if satisfactory to the trustee) of the
principal amount of notes to be redeemed and their redemption date. If less
than all of the notes of any series are to be redeemed, the trustee shall
select, in a manner it deems fair and appropriate, the notes to be redeemed.
((S)(S) 1103 and 1104).
All notes that we redeem in full will be canceled and may not be reissued or
resold.
Sinking Fund
If indicated in the applicable prospectus supplement, we may be obligated to
make mandatory sinking fund payments on the notes. Each sinking fund payment
will be applied to the redemption of the applicable series of notes.
Guarantees
The guarantors will, jointly and severally, on an unsubordinated basis,
unconditionally guarantee the payment of principal of, premium, if any, and
interest on each series of the notes, when the same becomes due and payable,
whether at the maturity date, by declaration of acceleration, call for
redemption or otherwise. If we default in the payment of the principal of,
premium, if any, or interest on the notes, the guarantors will be required
promptly to make such payment in full, without any action by the trustee or the
holder of any notes.
The guarantees are unsecured obligations of the guarantors and will be
effectively subordinated to mortgage and other secured indebtedness of the
guarantors. In the event of a guarantor insolvency, a creditor may avoid an
intercorporate guarantee in its entirety under federal and state bankruptcy and
fraudulent transfer law if the guarantee impaired the guarantor's financial
condition and was given without receiving reasonably equivalent value in
return. The indenture limits recovery under each guarantee to the highest
amount that would not render the guarantee void against creditors under such
laws. Accordingly, in the event of a guarantor insolvency, recovery against an
individual guarantor other than Regency Realty is unlikely.
The indenture provides that no guarantor may, in a single transaction or a
series of related transactions, consolidate with or merge into any other person
or permit any other person to consolidate with or merge into such guarantor,
unless: (1) in a transaction in which such guarantor does not survive, the
successor entity is organized under the laws of the United States of America or
any state thereof or the District of Columbia and, unless we or another
guarantor are the successor entity, shall unconditionally assume by a
supplemental indenture all of such guarantor's obligations under the indenture;
(2) immediately before and after giving effect to such transaction and treating
any Indebtedness which becomes an obligation of such guarantor or a subsidiary
thereof as a result of such transaction as having been incurred by such
guarantor or such subsidiary thereof at the time of the transaction, no event
of default with respect to the notes of any series shall have occurred and be
continuing; and (3) certain other conditions are met.
The guarantees will remain in effect with respect to each guarantor until the
entire principal of, premium, if any, and interest on the notes of each series
has been paid in full or the notes shall have been defeased and discharged as
described under clause (A) under "--Defeasance".
Covenants
The indenture contains, among others, the covenants set forth below. These
covenants may be modified by supplemental indenture with respect to any series
of notes prior to issuance. We will describe any modifications in the
applicable prospectus supplement. You should refer to the definitions beginning
on page 22 when reviewing these covenants. When we refer to "Regency Centers"
in this discussion, we mean Regency Centers, L.P.
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Limitation on Indebtedness
Regency Centers will not, and will not permit any Subsidiary to, incur any
Indebtedness, if, immediately after giving effect to the incurrence of such
additional Indebtedness and the application of the proceeds of such
Indebtedness, the aggregate principal amount of all outstanding Indebtedness of
Regency Centers and Subsidiaries on a consolidated basis determined in
accordance with GAAP is greater than 60% of the sum of (without duplication):
(1) Total Assets as of the end of the calendar quarter covered in Regency
Centers' annual report on Form 10-K or quarterly report on Form 10-Q,
as the case may be, most recently filed with the trustee (or such
reports of Regency Realty if filed by Regency Centers with the trustee
in lieu of filing its own reports) prior to the incurrence of such
additional Indebtedness; and
(2) the purchase price of any real estate assets or mortgages receivable
acquired and the amount of any securities offering proceeds received
(to the extent that the proceeds were not used to acquire real estate
assets or mortgages receivable or used to reduce Indebtedness) by
Regency Centers or any Subsidiary since the end of the calendar
quarter, including those proceeds obtained in connection with the
incurrence of the additional Indebtedness. ((S) 1008)
In addition, neither Regency Centers nor any Subsidiary may incur any
Indebtedness secured by any Encumbrance upon any of the property of Regency
Centers or any Subsidiary if, immediately after giving effect to the incurrence
of the additional Indebtedness and the application of the proceeds of such
Indebtedness, the aggregate principal amount of all outstanding Indebtedness of
Regency Centers and its Subsidiaries on a consolidated basis which is secured
by any Encumbrance on property of Regency Centers or any Subsidiary is greater
than 40% of the sum of (without duplication):
(1) the Total Assets of Regency Centers and its Subsidiaries as of the end
of the calendar quarter covered in Regency Centers' annual report on
Form 10-K or quarterly report on Form 10-Q, as the case may be, most
recently filed with the trustee (or such reports of Regency Realty if
filed by Regency Centers with the trustee in lieu of filing its own
reports) prior to the incurrence of the additional Indebtedness; and
(2) the purchase price of any real estate assets or mortgages receivable
acquired and the amount of any securities offering proceeds received
(to the extent that the proceeds were not used to acquire real estate
assets or mortgages receivable or used to reduce Indebtedness) by
Regency Centers or any Subsidiary since the end of the calendar
quarter, including those proceeds obtained in connection with the
incurrence of the additional Indebtedness. ((S) 1008)
Regency Centers and its Subsidiaries must at all times own Total Unencumbered
Assets equal to at least 150% of the aggregate outstanding principal amount of
the Unsecured Indebtedness of Regency Centers and its Subsidiaries on a
consolidated basis. ((S) 1008)
Regency Centers also will not, and will not permit any Subsidiary to, incur any
Indebtedness if the ratio of Consolidated Income Available for Debt Service to
the Annual Service Charge for the four consecutive fiscal quarters most
recently ended prior to the date on which such additional Indebtedness is to be
incurred shall have been less than 1.5 to 1, on a pro forma basis, after giving
effect to the incurrence of such Indebtedness and to the application of the
proceeds of such Indebtedness and calculated on the assumption that:
(1) such Indebtedness and any other Indebtedness incurred by Regency
Centers or its Subsidiaries since the first day of such four-quarter
period and the application of the proceeds of such Indebtedness,
including Indebtedness to refinance other Indebtedness, had occurred at
the beginning of such period;
(2) the repayment or retirement of any other Indebtedness by Regency
Centers or its Subsidiaries since the first day of such four-quarter
period had been incurred, repaid or retired at the beginning of such
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period (except that, in making such computation, the amount of
Indebtedness under any revolving credit facility shall be computed
based upon the average daily balance of such Indebtedness during such
period);
(3) in the case of Acquired Indebtedness or Indebtedness incurred in
connection with any acquisition since the first day of the four-quarter
period, the related acquisition had occurred as of the first day of the
period with appropriate adjustments with respect to the acquisition
being included in the pro forma calculation; and
(4) in the case of any acquisition or disposition by Regency Centers or any
Subsidiary of any asset or group of assets since the first day of such
four-quarter period, including, without limitation, by merger, stock
purchase or sale, or asset purchase or sale, such acquisition or
disposition or any related repayment Indebtedness had occurred as of
the first day of such period with appropriate adjustments with respect
to such acquisition or disposition being included in such pro forma
calculation. ((S) 1008)
For purposes of the foregoing provisions, Indebtedness is deemed to be
"incurred" by Regency Centers or a Subsidiary whenever Regency Centers and its
Subsidiary create, assume, guarantee or otherwise become liable for such
Indebtedness.
Provision of Financial Information
Whether or not Regency Centers is subject to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 or any successor provision, Regency Centers
will timely file with the Securities and Exchange Commission the annual
reports, quarterly reports and other documents which Regency Centers would have
been required to file with the Securities and Exchange Commission if subject to
Section 13(a) or 15(d) or any successor provision. If filing such documents by
Regency Centers with the Securities and Exchange Commission is not permitted,
Regency Centers will, within 15 days of each required filing date, file with
the trustee copies of the annual reports, quarterly reports and other documents
which Regency Centers would have been required to file with the Securities and
Exchange Commission and will also supply copies of such documents to any holder
or prospective holder upon written request. ((S) 1010)
Existence
Except as permitted under "--Merger, Consolidation or Sale", Regency Centers
and the guarantors are required to do all things necessary to preserve and keep
in full force and effect their respective existence, rights and franchises.
However, Regency Centers and the guarantors are not required to preserve any
right or franchise if they determine that the preservation thereof is no longer
desirable in the conduct of their business and that the loss of such right or
franchise is not disadvantageous in any material respect to the holders of the
notes. ((S) 1004)
Maintenance of Properties
Regency Centers is required to maintain and keep all properties used or useful
in the conduct of its business or the business of any Subsidiary in good
condition, repair and working order and supplied with all necessary equipment
and to make all necessary repairs, as in the judgment of Regency Centers may be
necessary so that its business may be properly and advantageously conducted at
all times. However, Regency Centers is not prevented from discontinuing the
operation or maintenance of any of its respective properties if such
discontinuance is, in the judgment of Regency Centers, desirable in the conduct
of its business or the business of any Subsidiary and not disadvantageous in
any material respect to the holders of the notes. ((S) 1005)
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Insurance
Regency Centers and the guarantors are required to, and to cause each of their
respective subsidiaries to, keep all of their insurable properties insured
against loss or damage with insurers of recognized responsibility, in
commercially reasonable amounts and types. ((S) 1007)
Payment of Taxes and Other Claims
Regency Centers and the guarantors will be required to pay or discharge, before
the same shall become delinquent, (i) all taxes, assessments and governmental
charges levied or imposed upon Regency Centers, any guarantor or any subsidiary
or upon the income, profits or property of Regency Centers, any guarantor or
any subsidiary, and (ii) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of Regency
Centers, any guarantor or any subsidiary. However, neither Regency Centers nor
any guarantor shall be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings. ((S) 1006)
Merger, Consolidation or Sale
Regency Centers may not, in a single transaction or a series of related
transactions, (1) consolidate with or merge into any other person or permit any
other person to consolidate with or merge into Regency Centers, (2) directly or
indirectly, transfer, convey, sell, lease or otherwise dispose of all or
substantially all of its assets, (3) acquire, or permit any Subsidiary to
acquire Capital Stock or other ownership interests of any other person such
that such person becomes a Subsidiary of Regency Centers and (4) directly or
indirectly purchase, lease or otherwise acquire, or permit any Subsidiary to
purchase, lease or otherwise acquire, (A) all or substantially all of the
property and assets of any person as an entirety or (B) any existing business
(whether existing as separate entity, subsidiary, division, unit or otherwise)
of any person, unless:
. in a transaction in which Regency Centers does not
survive or in which Regency Centers sells, leases
or otherwise disposes of all or substantially all
of its assets, the successor entity to Regency
Centers is organized under the laws of the United
States of America or any state thereof or the
District of Columbia and shall expressly assume by
a supplemental indenture all of Regency Centers'
obligations under the indenture;
. immediately before and after giving effect to such
transaction and treating any Indebtedness which
becomes an obligation of Regency Centers or a
Subsidiary as a result of such transaction as
having been Incurred by Regency Centers or such
Subsidiary at the time of the transaction, no
event of default with respect to the notes of any
series, or event that with the passing of time or
the giving of notice, or both, would become an
event of default with respect to the notes of any
series, shall have occurred and be continuing;
. immediately after giving effect to such
transaction, the Consolidated Net Worth of Regency
Centers (or other successor entity) is equal to or
greater than that of Regency Centers immediately
prior to the transaction; and
. certain other conditions are met. ((S) 801)
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Paying Agents
We have initially appointed the trustee, acting through its corporate trust
office in Jacksonville, Florida, as paying agent. We may change or terminate
any paying agent, or appoint additional paying agents. However, as long as any
notes remain outstanding, we must maintain a paying agent and a transfer agent
in Jacksonville, Florida, or the Borough of Manhattan, The City of New York. We
will cause the trustee to notify the holders of notes, in the manner described
under "--Notices" below, of any change or termination of any paying agent and
of any changes in the specified offices.
Certain Definitions
Set forth below are certain of the defined terms used in the indenture. You
should refer to the indenture for the definition of any other terms used in
this prospectus for which no definition is provided. ((S) 101)
"Acquired Indebtedness" means Indebtedness of a person (i) existing at the time
the person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from the person, in each case, other than Indebtedness
incurred in connection with, or in contemplation of, the person becoming a
Subsidiary or that acquisition. Acquired Indebtedness shall be deemed to be
incurred on the date of the related acquisition of assets from any person or
the date the acquired person becomes a Subsidiary.
"Affiliate" of any person means any other person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such person. For the purposes of this definition, "control" when used with
respect to any person means the power to direct the management and policies of
such person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Annual Service Charge" for any period means the aggregate interest expense for
the period in respect of, and the amortization during the period of any
original issue discount of, Indebtedness of Regency Centers and its
Subsidiaries and the amount of dividends which are payable during the period in
respect of any Disqualified Stock.
"Capital Stock" means, with respect to any person, any capital stock (including
preferred stock), shares, interests, participations or other ownership
interests (however designated) of the person and any rights (other than debt
securities convertible into or exchangeable for corporate stock), warrants or
options to purchase any thereof.
"Consolidated Income Available for Debt Service" for any period means Earnings
from Operations of Regency Centers and its Subsidiaries plus amounts which have
been deducted, and minus amounts which have been added, for the following
(without duplication): (i) interest expense on Indebtedness of Regency Centers
and its Subsidiaries; (ii) provision for taxes of Regency Centers and its
Subsidiaries based on income; (iii) amortization of debt discount; (iv)
provisions for gains and losses on properties and property depreciation and
amortization; (v) the effect of any noncash charge resulting from a change in
accounting principles in determining Earnings from Operations for the period;
and (vi) amortization of deferred charges.
"Consolidated Net Worth" of any person means the consolidated equity of such
person, determined on a consolidated basis in accordance with GAAP, less
amounts attributable to Disqualified Stock of such person; provided that, with
respect to Regency Centers, adjustments following the date of the indenture to
the accounting books and records of Regency Centers in accordance with
Accounting Principles Board Opinions Nos. 16 and 17 (or successor opinions
thereto) or otherwise resulting from the acquisition of control of Regency
Centers by another person shall not be given effect.
"Disqualified Stock" means, with respect to any person, any Capital Stock of
the person which by the terms of that Capital Stock (or by the terms of any
security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise (i) matures or is
mandatorily redeemable,
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pursuant to a sinking fund obligation or otherwise (other than Capital Stock
which is redeemable solely in exchange for common stock), (ii) is convertible
into or exchangeable or exercisable for Indebtedness or Disqualified Stock or
(iii) is redeemable at the option of the holder thereof, in whole or in part
(other than Capital Stock which is redeemable solely in exchange for Capital
Stock which is not Disqualified Stock or the redemption price of which may, at
the option of that person, be paid in Capital Stock which is not Disqualified
Stock), in each case on or prior to the stated maturity of the notes of the
relevant series; provided, however, that equity interests whose holders have
(or will have after the expiration of an initial holding period) the right to
have such equity interests redeemed for cash in an amount determined by the
value of the common stock of Regency Realty do not constitute Disqualified
Stock.
"Earnings from Operations" for any period means net earnings excluding gains
and losses on sales of investments, extraordinary items and property valuation
losses, net, as reflected in the financial statements of Regency Centers and
its Subsidiaries for the period determined on a consolidated basis in
accordance with GAAP.
"Encumbrance" means any mortgage, lien, charge, pledge or security interest of
any kind, except any mortgage, lien, charge, pledge or security interest of any
kind which secures debt of any guarantor owed to Regency Centers.
"Indebtedness" of Regency Centers or any Subsidiary means any indebtedness of
Regency Centers or such Subsidiary, as applicable, whether or not contingent,
in respect of (i) borrowed money or indebtedness evidenced by bonds, notes,
debentures or similar instruments, (ii) borrowed money or indebtedness
evidenced by bonds, notes, debentures or similar instruments secured by any
Encumbrance existing on property owned by Regency Centers or any Subsidiary,
(iii) reimbursement obligations in connection with any letters of credit
actually issued or amounts representing the balance deferred and unpaid of the
purchase price of any property or services, except any such balance that
constitutes an accrued expense or trade payable, or all conditional sale
obligations or obligations under any title retention agreement, (iv) the amount
of all obligations of Regency Centers or any Subsidiary with respect to
redemption, repayment or other repurchase of any Disqualified Stock and (v) any
lease of property by Regency Centers or any Subsidiary as lessee which is
reflected on Regency Centers' consolidated balance sheet as a capitalized lease
in accordance with GAAP, to the extent, in the case of items of indebtedness
under (i) through (iv) above, that any such items (other than letters of
credit) would appear as a liability on Regency Centers' consolidated balance
sheet in accordance with GAAP, and also includes, to the extent not otherwise
included, any obligation of Regency Centers or any Subsidiary to be liable for,
or to pay, as obligor, guarantor or otherwise (other than for purposes of
collection in the ordinary course of business), Indebtedness of another person
(other than Regency Centers or any Subsidiary) (it being understood that
Indebtedness shall be deemed to be incurred by Regency Centers or any
Subsidiary whenever Regency Centers or the Subsidiary shall create, assume,
guarantee or otherwise become liable in respect thereof).
"Make-Whole Amount" means, in connection with any optional redemption or
accelerated payment of any notes, the excess, if any, of (i) the aggregate
present value as of the date of such redemption or accelerated payment of each
dollar of principal being redeemed or paid and the amount of interest
(exclusive of interest accrued to the date of redemption or accelerated
payment) that would have been payable in respect of each such dollar if such
redemption or accelerated payment had not been made, determining by
discounting, on a semi-annual basis, such principal and interest at the
Reinvestment Rate (determined on the third Business Day preceding the date such
notice of redemption is given or declaration of acceleration is made) from the
respective dates on which such principal and interest would have been payable
if such redemption or accelerated payment had not been made, over (ii) the
aggregate principal amount of the notes being redeemed or paid.
"Reinvestment Rate" means the percentage established by Board Resolution (or,
in the absence of such Board Resolution, 0.25%) plus the arithmetic mean of the
yields under the respective heading "Week Ending" published in the most recent
Statistical Release under the caption "Treasury Constant Maturities" for the
maturity (rounded to the nearest month) corresponding to the remaining life to
maturity, as of the payment date
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of the principal being redeemed or paid. If no maturity exactly corresponds to
such maturity, yields for the two published maturities most closely
corresponding to such maturity shall be calculated pursuant to the immediately
preceding sentence and the Reinvestment Rate shall be interpolated or
extrapolated from such yields on a straight-line basis, rounding in each of
such relevant periods to the nearest month. For the purposes of calculating the
Reinvestment Rate, the most recent Statistical Release published prior to the
date of determination of the Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated "H.15(519)" or
any successor publication which is published weekly by the Federal Reserve
System and which establishes yields on actively traded United States government
securities adjusted to constant maturities, or, if such statistical release is
not published at the time of any determination under the indenture, then such
other reasonably comparable index which shall be designated by Regency Centers.
"Subsidiary" means a corporation, partnership or other entity a majority of the
voting power of the voting equity securities or the outstanding equity
interests of which are owned, directly or indirectly, by Regency Centers or by
one or more other Subsidiaries of Regency Centers. For the purposes of this
definition, "voting equity securities" means equity securities having voting
power for the election of directors, whether at all times or only so long as no
senior class of security has such voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i) Undepreciated Real Estate
Assets and (ii) all other assets of Regency Centers and its Subsidiaries on a
consolidated basis determined in accordance with GAAP (but excluding
intangibles).
"Total Unencumbered Assets" means the sum of (i) those Undepreciated Real
Estate Assets not subject to an Encumbrance for borrowed money and (ii) all
other assets of Regency Centers and its Subsidiaries not subject to an
Encumbrance for borrowed money determined in accordance with GAAP (but
excluding intangibles).
"Undepreciated Real Estate Assets" as of any date means the cost (original cost
plus capital improvements) of real estate assets of Regency Centers and its
Subsidiaries on such date, before depreciation and amortization, determined on
a consolidated basis in accordance with GAAP.
"Unsecured Indebtedness" means Indebtedness which is (i) not subordinated to
any other Indebtedness and (ii) not secured by any Encumbrance upon any of the
properties of Regency Centers or any Subsidiary.
Events of Default
Set forth below are events of default with respect to notes of any series under
the indenture. We may change, add to or take away from the events of default by
supplemental indenture with respect to any series of notes prior to issuance.
We will describe any such changes, additions or deletions in the applicable
prospectus supplement.
(a) we do not pay principal of or premium on any note of that series when
due;
(b) we do not pay any interest on any note of that series within 30 days of
the due date;
(c) we fail to comply with the provisions described under "--Merger,
Consolidation or Sale";
(d) we or the guarantors fail to perform any other covenant or agreement
under the indenture or the notes (other than a covenant or agreement
expressly included in the indenture for the benefit of another series
of notes) for 60 days after we receive written notice of the default
from the trustee or holders of at least 25% in aggregate principal
amount of outstanding notes of that series;
(e) we fail to make any sinking fund payment when due;
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(f) we or any guarantor default under the terms of any instrument
evidencing or securing Indebtedness having an outstanding principal
amount of $10.0 million individually or in the aggregate, which default
results in the acceleration of the payment of such indebtedness or
constitutes the failure to pay such indebtedness when due;
(g) we or any guarantor are subject to a final judgment or judgments (not
subject to appeal) in excess of $10.0 million which remains
undischarged or unstayed for 60 days after the right to appeal expires;
(h) certain events of bankruptcy, insolvency or reorganization affecting us
or any guarantor occur; or
(i) any other event of default provided with respect to the notes of that
series occurs. ((S) 501)
Subject to the provisions of the indenture relating to the duties of the
trustee, in case an event of default shall occur and be continuing, the trustee
will be under no obligation to exercise any of its rights or powers under the
indenture at the request or direction of any of the holders of notes of any
series, unless such holders shall have offered to the trustee reasonable
indemnity. ((S) 603) Subject to such indemnification provisions, the holders of
a majority in aggregate principal amount of the outstanding notes of any series
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the trustee or exercising any trust or
power conferred on the trustee with respect to the notes of that series. ((S)
512)
If an event of default (other than an event of default described in clause (h)
above) shall occur and be continuing with respect to the notes of any series
outstanding, either the trustee or the holders of at least 25% in aggregate
principal amount of the outstanding notes of that series may accelerate the
maturity of the notes of that series. However, after such acceleration, but
before a judgment or decree based on acceleration, the holders of a majority in
aggregate principal amount of outstanding notes of that series may, under
certain circumstances, rescind and annul such acceleration if all events of
default, other than the non-payment of accelerated principal, have been cured
or waived as provided. If an event of default specified in clause (h) above
occurs with respect to the notes of any series outstanding, the outstanding
notes of that series will become immediately due and payable without any
declaration or other act on the part of the trustee or any holder. ((S) 502)
For information as to waiver of defaults, see "--Modification and Waiver".
No holder of any note of any series will have the right to institute any
proceeding with respect to the indenture or for any remedy thereunder, unless
(1) such holder shall have previously given to the trustee written notice of a
continuing event of default with respect to the notes of that series; (2)
holders of at least 25% in aggregate principal amount of the outstanding notes
of that series have made written request, and offered reasonable indemnity, to
the trustee to institute such proceeding as trustee; (3) the trustee shall not
have received from the holders of a majority in aggregate principal amount of
the outstanding notes of that series a direction inconsistent with such
request; and (4) the trustee shall have failed to institute such proceeding
within 60 days. ((S) 507) However, such limitations do not apply to a suit
instituted by a holder of a note for enforcement of payment of the principal of
and premium, if any, or interest on such note on or after the respective due
dates expressed in such note. ((S) 508)
We will be required to furnish to the trustee quarterly a statement as to our
performance of certain of our obligations under the indenture and as to any
default in such performance. ((S) 1011)
Satisfaction and Discharge of the Indenture
The indenture will cease to be of further effect as to all outstanding notes,
except as to (1) rights of registration of transfer and exchange and our right
of optional redemption, (2) substitution of apparently mutilated, defaced,
destroyed, lost or stolen notes, (3) rights of holders to receive payment of
principal and interest on the notes,
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(4) rights, obligations and immunities of the trustee under the indenture and
(5) rights of the holders of the notes as beneficiaries of the indenture with
respect to any property deposited with the trustee payable to all or any of
them, if
(a) we have paid the principal of and interest on the notes when due; or
(b) all outstanding notes, except lost, stolen or destroyed notes which
have been replaced or paid, have been delivered to the trustee for
cancellation.
Defeasance
The indenture provides that, at our option, (A) we will be discharged from all
obligations in respect of any notes or (B) we may omit to comply with certain
restrictive covenants and that such omission will not be an event of default
under the indenture and the notes, if, in either case (A) or (B), we
irrevocably deposit with the trustee, in trust, money and/or U.S. government
obligations which will provide money in an amount sufficient in the opinion of
a nationally recognized firm of independent certified public accountants to pay
the principal of and premium, if any, and each installment of interest on such
notes. With respect to clause (B), the obligations under the indenture other
than with respect to such covenants and the events of default other than the
events of default relating to such covenants shall remain in full force and
effect.
Such trust may only be established if, among other things:
(1) with respect to clause (A), we have received from, or there has
been published by, the Internal Revenue Service a ruling or there has
been a change in law, which in the opinion of counsel provides that
holders of such notes will not recognize gain or loss for federal
income tax purposes as a result of such deposit, defeasance and
discharge to be effected with respect to such securities and will be
subject to Federal income tax on the same amount, in the same manner
and at the same times as would have been the case if such deposit,
defeasance and discharge had not occurred; or, with respect to clause
(B), we have delivered to the trustee an opinion of counsel to the
effect that the holders of such notes will not recognize gain or loss
for Federal income tax purposes as a result of such deposit and
defeasance and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would have been the
case if such deposit and defeasance had not occurred;
(2) no event of default or event that with the passing of time or the
giving of notice, or both, would become an event of default with
respect to any series shall have occurred or be continuing;
(3) we have delivered to the trustee an opinion of counsel to the
effect that such deposit shall not cause the trustee or the trust so
created to be subject to the Investment Company Act of 1940; and
(4) certain other customary conditions precedent are satisfied.
(Article Thirteen)
Modification and Waiver
We may amend the indenture with the consent of the holders of a majority in
aggregate principal amount of the outstanding notes of each series affected by
such amendment. However, no amendment may, without the consent of the holder of
each outstanding note affected, (a) change the stated maturity of the principal
of, or any installment of principal or interest on, any note, (b) reduce the
principal amount of, the premium or interest on, or the amount payable upon
redemption of any note, (c) change the place or currency of payment of
principal of, or premium or interest on, any note, (d) impair the right to
institute suit for the enforcement of any payment on, or with respect to, any
note, (e) reduce the percentage of outstanding notes necessary to amend the
indenture, (f) reduce the percentage of outstanding notes necessary for waiver
of compliance with certain provisions of the indenture or for waiver of certain
defaults, or (g) modify any provisions of the indenture relating to the
amendment of the indenture or the waiver of past defaults or covenants, except
as otherwise specified. ((S) 902)
We may also amend the indenture without the consent of any holders of notes to
(a) reflect a successor to us or the guarantors which is assuming our
obligations, (b) add to our covenants for the benefit of the holders of any
series of notes, (c) add additional events of default for the benefit of any
series of notes, (d) change provisions
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of the indenture to the extent necessary to permit the issuance of notes in
bearer or uncertificated form, registrable or not registrable as to principal,
and with or without interest coupons, (e) change any provisions of the
indenture so long as such change does not apply to notes outstanding at the
time of the change, (f) establish the form or terms of any series of notes, (g)
reflect a successor trustee or add provisions necessary for the administration
of the indenture by more than one trustee, (h) secure the notes, (i) maintain
the qualification of the indenture under the Trust Indenture Act, or (j)
correct any ambiguous, defective or inconsistent provision of the indenture so
long as such correction does not adversely affect holders of any notes in any
material respect.
A supplemental indenture which changes or eliminates any covenant or other
provision of the indenture which was expressly included in the indenture solely
for the benefit of a particular series of notes shall be deemed not to affect
the rights under the indenture of the holders of notes of any other series.
The holders of a majority in aggregate principal amount of the outstanding
notes of each series, on behalf of all holders of notes of such series, may
waive our compliance with certain restrictive provisions of the indenture. ((S)
1012) Subject to certain rights of the trustee, the holders of a majority in
aggregate principal amount of the outstanding notes of any series, on behalf of
all holders of notes of such series, may waive any past default under the
indenture, except a default in the payment of principal, premium or interest on
any notes of such series. ((S) 513)
Notices
The trustee will cause all notices to the holders of the notes to be mailed by
first class mail, postage prepaid to the address of each holder as it appears
in the register of notes. Any notice so mailed will be conclusively presumed to
have been received by the holders of the notes.
PROSPECTIVE PURCHASERS SHOULD NOTE THAT UNDER NORMAL CIRCUMSTANCES DTC WILL BE
THE ONLY "HOLDER" OF THE NOTES. See "Denomination, Registration, Transfer and
Book-Entry Procedures".
Governing Law
The indenture and the notes are governed by the laws of the State of New York.
The Trustee
Except during the continuance of an event of default, the trustee will perform
only such duties as are specifically set forth in the indenture. During the
existence of an event of default, the trustee will exercise such rights and
powers vested in it under the indenture and use the same degree of care and
skill as a prudent person would exercise under the circumstances in the conduct
of such person's own affairs. ((S)(S) 601 and 603)
The indenture and provisions of the Trust Indenture Act of 1939 incorporated by
reference in the indenture limit the rights of the trustee, should it become
our creditor, to obtain payment of claims in certain cases or to realize on
certain property received by it in respect of any such claim as security or
otherwise. The trustee is permitted to engage in other transactions with us or
any affiliate. However, if it acquires any conflicting interest (as defined in
the indenture or in the Trust Indenture Act of 1939), it must eliminate such
conflict or resign. ((S) 608)
Subordination
We will describe the terms and conditions, if any, upon which the notes are
subordinated to our other indebtedness in the applicable prospectus supplement.
Such terms will include a description of the indebtedness ranking senior to
such notes, the restrictions on payments to the holders of such notes while a
default with respect to such senior indebtedness is continuing, the
restrictions, if any, on payments to the holders of such notes following an
event of default and provisions requiring holders of such notes to remit
certain payments to holders of senior indebtedness.
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<PAGE>
PLAN OF DISTRIBUTION
We may sell the notes through underwriters or dealers, directly to one or more
purchasers, or through agents. We will describe in the applicable prospectus
supplement the terms of the offering of the notes, including the name or names
of any underwriters, dealers or agents, the purchase price of the notes and the
proceeds to us from such sale, any delayed delivery arrangements, any
underwriting discounts and other items constituting underwriters' compensation,
the initial public offering price, any discounts or concessions allowed or
reallowed or paid to dealers, and any securities exchanges on which the notes
may be listed.
If underwriters are used in the sale of the notes, underwriters may acquire the
notes for their own account and may resell the notes from time to time in one
or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The notes
may be offered to the public either through underwriting syndicates represented
by one or more managing underwriters or directly by one or more firms acting as
underwriters. We will name the underwriters with respect to a particular
underwritten offering of notes in the prospectus supplement relating to such
offering, and if an underwriting syndicate is used, we will set forth the
managing underwriter or underwriters on the cover of the prospectus supplement.
Unless otherwise set forth in the prospectus supplement, the obligations of the
underwriters or agents to purchase the notes will be subject to certain
conditions, and the underwriters will be obligated to purchase all the notes if
any are purchased. The initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed from time to
time.
If we utilize dealers in the sale of notes, we will sell the notes to the
dealers as principals. The dealers may then resell the notes to the public at
varying prices to be determined by the dealers at the time of resale. We will
set forth the names of the dealers and the terms of the transaction in the
applicable prospectus supplement.
We may sell notes directly or through agents which we designate from time to
time at fixed prices, which may be changed, or at varying prices determined at
the time of sale. We will set forth the names of any agent involved in the
offer or sale of the notes and any commissions payable by us to the agent in
the applicable prospectus supplement. Unless otherwise indicated in the
prospectus supplement, any agent will act on a best efforts basis for the
period of its appointment.
In connection with the sale of the notes, underwriters or agents may receive
compensation from us or from purchasers of notes for whom they may act as
agents, in the form of discounts, concessions or commissions. Underwriters,
agents and dealers participating in the distribution of the notes may be deemed
to be underwriters, and any discounts or commissions received by them and any
profit on the resale of the notes by them may be deemed to be underwriting
discounts or commissions under the Securities Act of 1933.
If so indicated in the prospectus supplement, we will authorize agents,
underwriters, or dealers to solicit offers from certain types of institutions
to purchase notes at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. Such contracts will be subject only
to those conditions set forth in the prospectus supplement, and the prospectus
supplement will set forth the commission payable for solicitation of such
contracts.
Agents, dealers, and underwriters may be entitled under agreements with us to
indemnification by us against certain civil liabilities, including liabilities
under the Securities Act of 1933, or to contribution with respect to payments
that such agents, dealers or underwriters may be required to make. Agents,
dealers and underwriters may be customers of, engage in transactions with, or
perform services for us in the ordinary course of business.
The notes may or may not be listed on a national securities exchange. No
assurances can be given that there will be a market for the notes.
28
<PAGE>
FEDERAL INCOME TAX CONSIDERATIONS
The following is a general summary of the material U.S. federal income tax
considerations applicable to the notes as well as a general summary of certain
of the material federal income tax considerations regarding Regency Realty. To
the extent that the following discussion constitutes matters of law of legal
conclusions, they are based upon the opinions of Foley & Lardner. This summary
is based on current law, is for general information only and is not tax advice.
This discussion does not purport to deal with all aspects of taxation that may
be relevant to particular investors in light of their personal investment or
tax circumstances, or to certain types of holders subject to special treatment
under the federal income tax laws, including insurance companies, tax-exempt
organizations, financial institutions or broker-dealers, foreign corporations,
persons who are not citizens or residents of the United States, persons who own
notes as part of a conversion transaction, as part of a hedging transaction or
as a position in a straddle for tax purposes and persons who own 10% or more of
the capital or profits interests in Regency Centers. This summary does not give
a detailed discussion of any state, local, or foreign tax considerations. This
summary is qualified in its entirety by the applicable provisions of the
Internal Revenue Code of 1986, as amended (the "Code"), the rules and
regulations promulgated thereunder, and administrative and judicial
interpretations thereof, all as of the date hereof and all of which are subject
to change (which change may apply retroactively).
As used in this section, the term "Regency Realty" refers to Regency Realty
Corporation and all qualified subsidiaries (a wholly-owned subsidiary which is
not treated as a separate entity for federal income tax purposes) but excludes
Regency Realty Group, Inc. and its subsidiaries (the "Management Company")
(which are treated as separate entities for federal income tax purposes,
although their results are consolidated with those of Regency Realty for
financial reporting purposes).
United States Holders
Payments of Interest
In the opinion of Foley & Lardner, interest on a note will be taxable to a
United States holder as ordinary income at the time it is received or accrued,
depending on the holder's method of accounting for tax purposes. A United
States holder is a beneficial owner that is (1) a citizen or resident of the
United States, (2) a domestic corporation, (3) an estate the income of which is
subject to United States federal income tax without regard to its source or (4)
a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust.
Purchase, Sale and Retirement of the Notes
In the opinion of Foley & Lardner, a United States holder's tax basis in a note
will generally be its costs. In the opinion of Foley & Lardner, upon the sale
or retirement of a note, a United States holder will generally recognize gain
or loss on the sale or retirement of a note equal to the difference between the
amount realized (not including any amounts attributable to accrued and unpaid
interest) and the holder's tax basis of the note. Long-term capital gain of a
non-corporate United States holder is generally subject to a maximum tax rate
of 20% in respect of property held for more than one year.
United States Alien Holders
For purposes of this discussion, a "United States Alien holder" is any holder
of a note who is (i) a nonresident alien individual or (ii) a foreign
corporation, partnership or estate or trust, in either case not subject to
United States federal income tax on a net income basis in respect of income or
gain from a note.
In the opinion of Foley & Lardner, under present United States federal income
and estate tax law, and subject to the discussion of backup withholding below:
(1) payments of principal and interest by Regency Centers or any of its
paying agents to any holder of a note that is a United States Alien
holder will not be subject to United States federal withholding tax
29
<PAGE>
if, in the case of interest, (a) the beneficial owner of the note does
not actually or constructively own 10% or more of the capital or
profits interest of Regency Centers, (b) the beneficial owner of the
note is not a controlled foreign corporation that is related to Regency
Centers through stock ownership, and (c) either (A) the beneficial
owner of the note certifies to Regency Centers or its agent, under
penalties of perjury, that it is not a United States Holder and
provides its name and address or (B) a securities clearing
organization, bank or other financial institution that holds customers'
securities in the ordinary course of its trade or business (a
"financial institution") and holds the note certifies to Regency
Centers or its agent under penalties of perjury that such statement has
been received from the beneficial owner by it or by a financial
institution between it and the beneficial owner and furnishes the payor
with a copy thereof;
(2) a United States Alien holder of a note will not be subject to United
States federal withholding tax on any gain realized on the sale of a
note; and
(3) a note held by an individual who at death is not a citizen or resident
of the United States will not be includable in the individual's gross
estate for purposes of the United States federal estate tax as a result
of the individual's death if (a) the individual did not actually or
constructively own 10% or more of the capital or profits interest of
Regency Centers and (b) the income on the note would not have been
effectively connected with a United States trade or business of the
individual at the individual's death.
Treasury regulations that are generally effective with respect to payments
after December 31, 1999 would provide alternative methods for satisfying the
certification requirement described in clause (1)(c) above. These withholding
regulations also would require, in the case of notes held by a foreign
partnership, that (x) the certification described in clause (1)(c) above be
provided by the partners rather than by the foreign partnership and (y) the
partnership provide certain information, including a United States taxpayer
identification number. A look-through rule would apply in the case of tiered
partnerships.
Backup Withholding and Information Reporting
United States Holders
In the opinion of Foley & Lardner, in general, information reporting
requirements will apply to payments of principal and interest on a note and the
proceeds of the sale of a note before maturity within the United States to non-
corporate United States holders, and "backup withholding" at a rate of 31% will
apply to such payments if the United States holder fails to provide an accurate
taxpayer identification number or is notified by the IRS that it has failed to
report all interest and dividends required to be shown on its federal income
tax returns.
United States Alien Holders
In the opinion of Foley & Lardner, under current law, information reporting on
IRS Form 1099 and backup withholding will not apply to payments of principal
and interest made by Regency Centers or a paying agent to a United States Alien
holder on a note; provided, the certification described in clause (i)(c) under
"United States Alien Holders" above is received and provided further that the
payor does not have actual knowledge that the holder is a United States person.
Regency Centers or a paying agent, however, may report (on IRS Form 1042S)
payments of interest on notes. See the discussion above with respect to the
rules under the withholding regulations.
In the opinion of Foley & Lardner, payments of the proceeds from the sale by a
United States Alien holder of a note made to or through a foreign office of a
broker will not be subject to information reporting or backup withholding,
except that if the broker is (1) a United States person, (2) a controlled
foreign corporation for United States tax purposes, (3) a foreign person 50% or
more of whose gross income is effectively connected with a United States trade
or business for a specified three-year period or (4) with respect to payments
made after December 31, 1999, a foreign partnership, if at any time during its
tax year one or more of its partners are
30
<PAGE>
U.S. persons (as defined in U.S. Treasury regulations) who in the aggregate
hold more than 50% of the income or capital interest in the partnership or if,
at any time during its tax year, such foreign partnership is engaged in a
United States trade or business, information reporting may apply to such
payments. Payments of the proceeds from the sale of a note to or through the
United States office of a broker is subject to information reporting and backup
withholding unless the holder or beneficial owner certifies as to its non-
United States status or otherwise establishes an exemption from information
reporting and backup withholding.
Tax Considerations Regarding Regency Realty
Regency Realty made an election to be taxed as a real estate investment trust
("REIT") under Sections 856 through 860 of the Code commencing with its taxable
year ending December 31, 1993. Regency Realty believes that it has been
organized and operated in such a manner as to qualify for taxation as a REIT
under the Code for such taxable year and all subsequent taxable years to date,
and Regency Realty intends to continue to operate in such a manner in the
future. However, no assurance can be given that Regency Realty will operate in
a manner so as to qualify or remain qualified as a REIT.
The following sets forth only a summary of the material aspects of the Code
sections that govern the federal income tax treatment of a REIT and its
shareholders.
A REIT is defined in the Code as a corporation, trust or association:
(1) which is managed by one or more trustees or directors;
(2) the beneficial ownership of which is evidenced by transferable shares
or by transferable certificates of beneficial interest;
(3) which would be taxable as a domestic corporation, but for Sections 856
through 859 of the Code;
(4) which is neither a financial institution nor an insurance company
subject to certain provisions of the Code;
(5) the beneficial ownership of which is held by 100 or more persons
(determined without reference to any rules of attribution);
(6) not more than 50% in value of the outstanding stock of which is owned
during the last half of each taxable year, directly or indirectly, by
or for "five or fewer" individuals (as defined in the Code to include
certain entities); and
(7) which meets certain income and asset tests.
Conditions (1) to (4), inclusive, must be met during the entire taxable year
and condition (5) must be met during at least 335 days of a taxable year of 12
months, or during a proportionate part of a taxable year of less than 12
months.
Qualification as a REIT
It is the opinion of Foley & Lardner that (1) Regency Realty has qualified as a
REIT for its taxable years ended December 31, 1993 through December 31, 1997;
(2) Regency Realty has been organized in conformity with the requirements for
qualification and taxation as a REIT and (3) Regency Realty's method of
operation has enabled it and will continue to enable it to meet the
requirements for qualification and taxation as a REIT under the Code. It must
be emphasized that this opinion is based on various assumptions and is
conditioned upon certain representations made by Regency Realty as to factual
matters including, but not limited to, those concerning its business and
properties, and certain matters relating to Regency Realty's manner of
operation. Foley & Lardner is not aware of any facts or circumstances that are
inconsistent with these factual representations and assumptions. The
qualification and taxation as a REIT depends upon Regency Realty's ability to
meet, through actual annual operating results, the various income, asset,
distribution, stock ownership and other tests for qualification as a REIT set
forth in the Code, the results of which will not be reviewed by nor be under
the control of Foley & Lardner. Accordingly, no assurance can be given that the
actual results of
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<PAGE>
Regency Realty's operation for any particular taxable year will satisfy the
requirements under the Code for qualification and taxation as a REIT. For a
discussion of the tax consequences of failure to qualify as a real estate
investment trust, see "--Failure to Qualify."
Taxation of Regency Realty
As a REIT, Regency Realty generally is not subject to federal corporate income
tax on its net income that is currently distributed to shareholders. This
treatment substantially eliminates the "double taxation" (at the corporate and
shareholder levels) that generally results from an investment in a corporation.
However, Regency Realty will be subject to federal income tax in the following
circumstances. First, Regency Realty will be taxed at regular corporate rates
on any undistributed REIT taxable income, including undistributed net capital
gains. Second, under certain circumstances, Regency Realty may be subject to
the "corporate alternative minimum tax" on its items of tax preference. Third,
if Regency Realty has (i) net income from the sale or other disposition of
"foreclosure property" (which is, in general, property acquired by Regency
Realty by foreclosure or otherwise on default of a loan secured by the
property) which is held primarily for sale to customers in the ordinary course
of business or (ii) other non-qualifying net income from foreclosure property,
it will be subject to tax on such income at the highest corporate rate. Fourth,
if Regency Realty has net income from "prohibited transactions" (which are, in
general, certain sales or other dispositions of property held primarily for
sale to customers in the ordinary course of business other than foreclosure
property), such income will be subject to a 100% tax. Fifth, if Regency Realty
should fail to satisfy the 75% gross income test or the 95% gross income test
(as discussed below), and has nonetheless maintained its qualification as a
REIT because certain other requirements have been met, it will be subject to a
100% tax on the net income attributable to the greater of the amount by which
Regency Realty fails the 75% or 95% test, multiplied by a fraction intended to
reflect Regency Realty's profitability. Sixth, if Regency Realty should fail to
distribute during each calendar year at least the sum of (i) 85% of its REIT
ordinary income for such year, (ii) 95% of its REIT capital gain net income for
such year, and (iii) any undistributed taxable income from prior years, it will
be subject to a 4% excise tax on the excess of such required distribution over
the amounts actually distributed. Seventh, if during the 10-year period (the
"recognition period") beginning on the first day of the first taxable year for
which Regency Realty qualified as a REIT, Regency Realty recognizes gain on the
disposition of any asset held by Regency Realty as of the beginning of such
recognition period, then, to the extent of the excess of (a) the fair market
value of such asset as of the beginning of such recognition period over (b)
Regency Realty's adjusted basis in such asset as of the beginning of such
recognition period (the "built-in gain"), such gain will be subject to tax at
the highest regular corporate rate. Because Regency Realty initially acquired
its properties in connection with its initial public offering in fully taxable
transactions, it is not anticipated that Regency Realty will own any assets
with substantial built-in gain. Eighth, if Regency Realty acquires any asset
from a C corporation (i.e., generally a corporation subject to full corporate-
level tax) in a transaction in which the basis of the asset in Regency Realty's
hands is determined by reference to the basis of the asset (or any other
property) in the hands of the C corporation ("carry-over basis"), and Regency
Realty recognizes gain on the disposition of such asset during the recognition
period beginning on the date on which such asset was acquired by Regency
Realty, then, to the extent of the built-in gain, such gain will be subject to
tax at the highest regular corporate rate. The result described above with
respect to the recognition of built-in gain during the recognition period
assumes Regency Realty will make an election in accordance with Notice 88-19
issued by the Internal Revenue Service ("IRS").
In addition, the Management Company is taxed on its income at regular corporate
rates.
Failure to Qualify
If Regency Realty fails to qualify for taxation as a REIT in any taxable year,
and the relief provisions do not apply, Regency Realty will be subject to tax
(including any applicable corporate alternative minimum tax) on its taxable
income at regular corporate rates. Distributions to shareholders in any year in
which Regency Realty fails to qualify will not be deductible by Regency Realty
nor will they be required to be made. Unless entitled to relief under specific
statutory provisions, Regency Realty will also be disqualified from taxation as
a REIT for the four taxable years following the year during which qualification
was lost. It is not possible to state whether Regency Realty would be entitled
to such statutory relief.
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ERISA CONSIDERATIONS
The following is a summary of material considerations arising under the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and the
prohibited transactions provisions of Section 4975 of the Code that may be
relevant to a prospective purchaser. This discussion does not purport to deal
with all aspects of ERISA or Section 4975 of the Code that may be relevant to
particular shareholders in light of their particular circumstances, including
plans subject to Title I of ERISA, other retirement plans and Individual
Retirement Accounts ("IRA's") subject to the prohibited transaction provisions
of Section 4975 of the Code, and governmental plans or church plans that are
exempt from ERISA and Section 4975 of the Code but that may be subject to the
prohibited transaction provisions of Section 503 of the Code and to state law
requirements.
A FIDUCIARY MAKING THE DECISION TO INVEST IN SECURITIES ON BEHALF OF A
PROSPECTIVE PURCHASER WHICH IS AN EMPLOYEE BENEFIT PLAN, A TAX QUALIFIED
RETIREMENT PLAN, OR AN IRA IS ADVISED TO CONSULT ITS OWN LEGAL ADVISOR
REGARDING THE SPECIFIC CONSIDERATIONS ARISING UNDER ERISA, SECTIONS 4975 AND
503 OF THE CODE, AND STATE LAW WITH RESPECT TO THE PURCHASE, OWNERSHIP, OR SALE
OF THE SHARES BY SUCH PLAN OR IRA.
Employee Benefit Plans, Tax Qualified Retirement Plans and IRA's
Each fiduciary of a pension, profit sharing, or other employee benefit plan
subject to Title I of ERISA should carefully consider whether an investment in
the notes is consistent with his fiduciary responsibilities under ERISA. The
fiduciary must make its own determination as to whether an investment in the
notes (i) is permissible under the documents governing the ERISA plan, (ii) is
appropriate for the ERISA plan under the general fiduciary standards of
investment prudence and diversification, taking into account the overall
investment policy of the ERISA plan and the composition of the ERISA plan's
investment portfolio, and (iii) would result in a nonexempt prohibited
transaction under ERISA and the Code.
The fiduciary of an IRA or of a qualified retirement plan not subject to Title
I of ERISA because it is a governmental or church plan or because it does not
cover common law employees should consider that such an IRA or non-ERISA plan
may only make investments that are authorized by the appropriate governing
documents and under applicable state law. The fiduciary should also consider
the applicable prohibited transaction rules of Sections 4975 and 503 of the
Code.
LEGAL MATTERS
The validity of the notes and certain tax matters described under "Federal
Income Tax Considerations" and "ERISA Considerations" will be passed upon for
Regency Centers by Foley & Lardner, Jacksonville, Florida. Attorneys with Foley
& Lardner representing Regency Centers with respect to this offering
beneficially owned approximately 4,100 shares of common stock of Regency Realty
as of the date of this prospectus.
EXPERTS
The consolidated financial statements and schedule of Regency Centers, L.P. as
of December 31, 1997 and 1996, and for each of the years in the three year
period ended December 31, 1997, the consolidated financial statements of
Regency Realty Corporation as of December 31, 1997 and 1996, and for each of
the years in the three-year period ended December 31, 1997, and the financial
statements of each of Regency Office Partnership, L.P., RRC Acquisitions, Inc.,
and RRC FL Five, Inc. as of December 31, 1997 and 1996, and for each of the
years in the three-year period ended December 31, 1997 (or the period beginning
at inception, if shorter) have been incorporated by reference, or included,
herein and in the Registration Statement in reliance upon the reports of KPMG
LLP, independent certified public accountants,
33
<PAGE>
incorporated by reference, or included, herein, and upon the authority of said
firm as experts in accounting and auditing. To the extent that KPMG LLP audits
and reports on consolidated financial statements of Regency Centers or the
guarantors issued at future dates, and consents to the use of their reports
thereon, such consolidated financial statements also will be incorporated by
reference in the Registration Statement in reliance upon their reports and said
authority.
The financial statements of Pacific Retail Trust as of December 31, 1997 and
1996, and for each of the years in the two-year period ended December 31, 1997,
and the period from Pacific Retail's inception through December 31, 1995 and
the financial statement schedule incorporated by reference in the Registration
Statement on Form S-3 filed by Regency Centers, L.P. have been so incorporated
in reliance on the reports of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
34
<PAGE>
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<S> <C>
REGENCY OFFICE PARTNERSHIP, L.P.
Introduction.............................................................. F-2
Independent Auditors' Report.............................................. F-3
Balance Sheets as of September 30, 1998 (unaudited) and December 31, 1997
and 1996................................................................. F-4
Statements of Operations for the nine months ended September 30, 1998 and
1997 (unaudited) and the years ended December 31, 1997, 1996, and 1995... F-5
Statements of Changes in Partners' Capital for the nine months ended
September 30, 1998 (unaudited) and the years ended December 31, 1997,
1996, and 1995........................................................... F-6
Statements of Cash Flows for the nine months ended September 30, 1998 and
1997 (unaudited) and the years ended December 31, 1997, 1996, and 1995... F-7
Notes to Financial Statements............................................. F-8
RRC FL FIVE, INC.
Independent Auditors' Report.............................................. F-11
Balance Sheets as of September 30, 1998 (unaudited) and December 31, 1997
and 1996................................................................. F-12
Statements of Operations for the nine months ended September 30, 1998 and
1997 (unaudited) and the years ended December 31, 1997, 1996 and 1995.... F-13
Statements of Stockholder's Equity for the nine months ended September 30,
1998 (unaudited) and the years ended December 31, 1997, 1996 and 1995.... F-14
Statements of Cash Flows for the nine months ended September 30, 1998 and
1997 (unaudited) and the years ended December 31, 1997, 1996 and 1995.... F-15
Notes to Financial Statements............................................. F-16
RRC ACQUISITIONS, INC.
Independent Auditors Report............................................... F-19
Balance Sheets as of September 30, 1998 (unaudited) and December 31,
1997..................................................................... F-20
Statements of Operations for the nine months ended September 30, 1998
(unaudited) and the year ended December 31, 1997......................... F-21
Statements of Stockholder's Equity for the nine months ended September 30,
1998 (unaudited) and the year ended December 31, 1997.................... F-22
Statements of Cash Flows for the nine months ended September 30, 1998
(unaudited) and the year ended December 31, 1997......................... F-23
Notes to Financial Statements............................................. F-24
</TABLE>
F-1
<PAGE>
INTRODUCTION
The accompanying financial statements of Regency Office Partnership, L.P., a
99%-owned subsidiary of the Issuer ("Regency Office"), and RRC FL, Inc. ("FL
Five") and RRC Acquisitions, Inc. ("Acquisitions"), both of which are wholly-
owned subsidiaries of Regency, are included herein. Regency Office, FL Five
Acquisitions are Guarantors of the Notes.
The financial statements of Regency are incorporated herein by reference.
F-2
<PAGE>
INDEPENDENT AUDITORS' REPORT
The Partners
Regency Office Partnership, L.P.:
We have audited the accompanying balance sheets of Regency Office
Partnership, L.P. as of December 31, 1997 and 1996, and the related statements
of operations, partners' capital, and cash flows for each of the years in the
three-year period ended December 31, 1997. These financial statements are the
responsibility of the Partnership's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Regency Office
Partnership, L.P. as of December 31, 1997 and 1996, and the results of its
operations and its cash flows for each of the years in the three-year period
ended December 31, 1997, in conformity with generally accepted accounting
principles.
KPMG LLP
Jacksonville, Florida
September 16, 1998
F-3
<PAGE>
REGENCY OFFICE PARTNERSHIP, L.P.
BALANCE SHEETS
<TABLE>
<CAPTION>
December 31,
---------------------
September 30,
1998 1997 1996
------------- ---------- ----------
(unaudited)
<S> <C> <C> <C>
Assets
Cash restricted for tenants' security
deposits.................................. $ 50,191 62,852 51,234
Property and buildings, at cost (note 2):
Land..................................... 7,394,905 -- 3,624,212
Buildings and improvements............... 26,764,821 -- 22,963,443
----------- ---------- ----------
34,159,726 -- 26,587,655
Less accumulated depreciation............ 393,344 -- 5,028,158
----------- ---------- ----------
Net property and buildings............. 33,766,382 -- 21,559,497
----------- ---------- ----------
Office buildings held for sale (note 2).... -- 19,258,232 --
----------- ---------- ----------
Other assets:
Accounts receivable and other assets..... 250,177 41,894 62,057
Deferred leasing costs, less accumulated
amortization............................ 9,008 278,771 249,917
----------- ---------- ----------
Total other assets..................... 259,185 320,665 311,974
----------- ---------- ----------
$34,075,758 19,641,749 21,922,705
=========== ========== ==========
Liabilities and Partners' Capital
Liabilities:
Mortgage loan payable.................... $ -- -- 5,256,760
Accounts payable and other liabilities... 238,557 87,142 20,372
Tenants' security deposits............... 50,191 62,852 51,234
----------- ---------- ----------
Total liabilities...................... 288,748 149,994 5,328,366
----------- ---------- ----------
Partners' capital.......................... 33,787,010 19,491,755 16,594,339
----------- ---------- ----------
$34,075,758 19,641,749 21,922,705
=========== ========== ==========
</TABLE>
See accompanying notes to financial statements.
F-4
<PAGE>
REGENCY OFFICE PARTNERSHIP, L.P.
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Nine months ended
September 30, Year ended December 31,
--------------------- -----------------------------
1998 1997 1997 1996 1995
----------- --------- --------- --------- ---------
(unaudited)
<S> <C> <C> <C> <C> <C>
Revenues:
Rental income............ $ 2,567,782 3,101,897 4,136,367 4,026,288 3,740,148
Tenant reimbursements.... 364,560 361,327 496,029 443,574 415,095
Other income............. 6,662 5,047 52,597 28,486 25,561
----------- --------- --------- --------- ---------
Total revenues......... 2,939,004 3,468,271 4,684,993 4,498,348 4,180,804
----------- --------- --------- --------- ---------
Expenses:
Operating and
maintenance............. 210,130 483,236 661,970 610,493 618,728
Depreciation and
amortization............ 548,492 560,621 855,039 733,121 677,303
General and
administrative.......... 108,311 247,364 309,874 240,471 254,038
Utilities................ 74,328 343,680 472,036 492,209 472,737
Real estate taxes........ 244,816 342,818 447,478 440,128 452,954
Interest................. -- 239,730 290,127 444,666 444,233
----------- --------- --------- --------- ---------
Total expenses......... 1,186,077 2,217,449 3,036,524 2,961,088 2,919,993
----------- --------- --------- --------- ---------
Net income before gain
on sale of real
estate................ 1,752,927 1,250,822 1,648,469 1,537,260 1,260,811
Gain on sale of real estate
(note 2).................. 10,451,794 -- 450,902 -- --
----------- --------- --------- --------- ---------
Net income............. $12,204,721 1,250,822 2,099,371 1,537,260 1,260,811
=========== ========= ========= ========= =========
</TABLE>
See accompanying notes to financial statements.
F-5
<PAGE>
REGENCY OFFICE PARTNERSHIP, L.P.
STATEMENTS OF PARTNERS' CAPITAL
<TABLE>
<CAPTION>
Total Partners'
Capital
---------------
<S> <C>
Balance at December 31, 1994.............................. $17,258,776
Net contributions (distributions)......................... (1,634,500)
Net income................................................ 1,260,811
-----------
Balance at December 31, 1995.............................. 16,885,087
Net contributions (distributions)......................... (1,828,008)
Net income................................................ 1,537,260
-----------
Balance at December 31, 1996.............................. 16,594,339
Net contributions (distributions)......................... 798,045
Net income................................................ 2,099,371
-----------
Balance at December 31, 1997.............................. 19,491,755
Net contributions (distributions) (unaudited)............. 2,090,534
Net income (unaudited).................................... 12,204,721
-----------
Balance at September 30, 1998 (unaudited)................. $33,787,010
===========
</TABLE>
See accompanying notes to financial statements.
F-6
<PAGE>
REGENCY OFFICE PARTNERSHIP, L.P.
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Nine months ended
September 30, Year ended December 31,
------------------------ ----------------------------------
1998 1997 1997 1996 1995
------------ ---------- ---------- ---------- ----------
(unaudited)
<S> <C> <C> <C> <C> <C>
Cash flows from
operating activities:
Net income............. $ 12,204,721 1,250,822 2,099,371 1,537,260 1,260,811
Adjustments to reconcile
net income to net cash
provided by operating
activities:
Depreciation and
amortization.......... 548,492 560,621 855,039 733,121 677,303
Deferred leasing costs. (39,457) (155,269) (208,305) (116,563) (97,618)
Gain on sale of real
estate................ (10,451,794) -- (450,902) -- --
Changes in assets and
liabilities:
Accounts receivable
and other
assets............... (208,283) 2,979 20,163 (20,594) 211,303
Accounts payable and
other
liabilities.......... 151,415 461,845 66,770 (36,369) (96,197)
Cash restricted for
tenants' security
deposits............. 12,661 (4,881) (11,618) (623) 388
Tenants' security
deposits............. (12,661) 4,881 11,618 623 (388)
------------ ---------- ---------- ---------- ----------
Net cash provided by
operating
activities......... 2,205,094 2,120,998 2,382,136 2,096,855 1,955,602
------------ ---------- ---------- ---------- ----------
Cash flows from
investing activities:
Proceeds from sale of
real estate........... 29,864,098 -- 2,645,229 -- --
Purchase of and
additions to property
and buildings......... (34,159,726) (415,479) (568,650) (250,430) (235,528)
------------ ---------- ---------- ---------- ----------
Net cash used in
investing
activities......... (4,295,628) (415,479) (2,076,579) (250,430) (235,528)
------------ ---------- ---------- ---------- ----------
Cash flows from
financing activities:
Principal payments on
mortgage loan......... -- (2,296,902) (5,256,760) 60,768 (51,121)
Net contributions
(distributions)....... 2,090,534 591,383 798,045 (1,828,008) (1,634,500)
------------ ---------- ---------- ---------- ----------
Net cash provided by
(used in) financing
activities......... 2,090,534 (1,705,519) (4,458,715) (1,888,776) (1,685,621)
------------ ---------- ---------- ---------- ----------
Net change in cash
and cash
equivalents........ -- -- -- (42,351) 34,453
Cash and cash equiva-
lents at beginning of
period................. -- -- -- 42,351 7,898
------------ ---------- ---------- ---------- ----------
Cash and cash equiva-
lents at end of
period................. $ -- -- -- -- 42,351
============ ========== ========== ========== ==========
Supplemental disclosure
of cash flow
information:
Cash paid for interest. $ -- 239,730 302,627 444,666 444,233
============ ========== ========== ========== ==========
</TABLE>
See accompanying notes to financial statements.
F-7
<PAGE>
REGENCY OFFICE PARTNERSHIP, L.P.
NOTES TO FINANCIAL STATEMENTS
December 31, 1997, 1996, and 1995
(1) Summary of Significant Accounting Policies
(a) Partnership Structure
Regency Office Partnership, L.P. (the Partnership) was formed as a Florida
partnership for the purpose of acquiring, leasing and operating shopping
centers and office buildings.
The Partnership interest is currently held 99% by Regency Centers, L.P., a
Delaware limited partnership (RCLP), as general partner, and 1% by Regency
Realty Corporation, RCLP's parent. Prior to February 23, 1998, the
Partnership was owned 100% by two wholly owned subsidiaries of Regency
Realty Corporation.
(b) Method of Accounting
The accompanying financial statements were prepared on the accrual basis
of accounting. No provision for income taxes is made because any liability
for income taxes is that of the individual Partners and not that of the
Partnership.
(c) Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires the Partnership's management to
make estimates and assumptions that affect the reported amounts of assets
and liabilities and disclosure of contingent assets and liabilities at the
date of the financial statements and the reported amounts of revenues and
expenses during the reporting period. Actual results could differ from
those estimates.
(d) Property and Buildings
Property and building are recorded at cost. Major additions and
improvements to property and buildings are capitalized to the property
accounts, while replacements, maintenance, and repairs which do not
improve or extend the useful lives of the respective assets are reflected
in operations. Depreciation is computed using the straight-line method
over the estimated useful lives of the property and buildings, which is 39
years for buildings and improvements and the life of the lease term for
tenant improvements. The aggregate cost, for federal income tax purposes
was approximately $20.1 million at December 31, 1997.
(e) Revenue Recognition
The Partnership leases space to tenants under agreements with varying
terms. Leases are accounted for as operating leases with minimum rent
recognized on a straight-line basis over the term of the lease regardless
of when payments are due. During 1996 and 1995, the Partnership collected
cash of $28,128 and $207,780, respectively, in excess of minimum rent
recorded related to the impact of recognizing rent on a straight-line
basis. Contingent rentals are included in income in the period earned.
(f) Deferred Costs
Deferred costs consist of costs associated with leasing the property. Such
costs are deferred and amortized using the straight-line method over the
terms of the respective leases.
(g) Cash and Cash Equivalents
For the purposes of the statement of cash flows, the Partnership considers
all instruments with a maturity of 90 days or less at purchase to be cash
equivalents.
F-8
<PAGE>
REGENCY OFFICE PARTNERSHIP, L.P.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(h) Impairment of Long-Lived Assets
The Partnership follows the provisions of Statement of Financial
Accounting Standards No. 121, "Accounting for the Impairment of Long-Lived
Assets and Long-Lived Assets to be Disposed Of". This Statement requires
that long-lived assets be reviewed for impairment whenever events or
changes in circumstances indicate that the carrying amount of an asset may
not be recoverable. Recoverablility of assets to be held and used is
measured by comparison of the carrying amount of an asset to future net
cash flows expected to be generated by the asset. If such assets are
considered to be impaired, the impairment to be recognized is measured by
the amount by which the carrying amounts of the assets exceed their fair
value, less costs to sell.
(i) Interim Unaudited Financial Statements
The accompanying interim financial statements have been prepared by the
Partnership, without audit, and in the opinion of management reflect all
normal recurring adjustments necessary for a fair presentation of the
results for the unaudited periods presented. Certain information in
footnote disclosures normally included in the financial statements
prepared in accordance with generally accepted accounting principles have
been condensed or omitted.
(2) Sale of Office Buildings and Purchase of Shopping Centers
During 1997, 1996 and 1995, the operations of the Partnership were
generated from the rental of four office properties. Those properties were
(1) Quadrant, a 188,502 square foot property located in Jacksonville,
Florida, constructed and acquired in 1985 for approximately $17.9 million,
(2) Paragon Cable Building, a 40,298 square foot property located in
Tampa, Florida, constructed and acquired in 1993 for approximately $3.0
million, (3) Westland One, a 36,304 square foot property located in
Jacksonville, Florida, constructed and acquired in 1988 for approximately
$2.0 million, and (4) Fairway Executive Center, a 33,135 square foot
property located in Fort Lauderdale, Florida. On December 22, 1997 the
Partnership sold Fairway Executive Center for $2,645,229 which resulted in
a gain of $450,902.
In December 1997, the Partnership classified all of its office buildings
as held for sale. Accordingly, no depreciation has been recorded on such
properties from that point forward. During the first six months of 1998
the Partnership sold the remaining three office properties for a net sales
price of $29,864,098, and recorded a gain of $10,451,794. Subsequent to
the sales of the office properties, the Partnership purchased two shopping
centers, Cherry Grove, a 186,040 square foot property located in
Cincinnati, Ohio, and Bloomingdale Square, a 267,935 square foot property
located in Tampa, Florida, for a total purchase price of $33,635,875.
(3) Leases
The Partnership has various tenant leases with terms that expire through
2021. Based on the sales and subsequent purchases of rental property
described in note 2, the following future minimum rental payments reflect
the leases related to the Partnership's current rental properties only,
Cherry Grove and Bloomingdale Square:
<TABLE>
<CAPTION>
Year ending December 31, Amount
------------------------ -----------
<S> <C>
1998...................................................... $ 3,432,045
1999...................................................... 3,369,109
2000...................................................... 3,126,854
2001...................................................... 2,792,840
2002...................................................... 2,369,348
Thereafter................................................ 16,406,402
-----------
$31,496,598
===========
</TABLE>
F-9
<PAGE>
REGENCY OFFICE PARTNERSHIP, L.P.
NOTES TO FINANCIAL STATEMENTS--(Continued)
Most tenants are responsible for payment or reimbursement of their
proportionate share of taxes, insurance, and common area expenses.
During each of 1997, 1996, and 1995, two office building tenants, paid
minimum rents totaling $1,228,764, which exceeded 10% of the total minimum
rent earned by the Partnership.
(4) Related Party Transactions
The Partnership paid fees for property management to RCLP of $172,194,
$166,172 and $129,636 for the years ended December 31, 1997, 1996, and
1995, respectively. In addition, during 1996 and 1995 the Partnership paid
RRG, an affiliate of RCLP, $45,000 and $120,000, respectively for asset
management services.
The Partnership paid tenant lease commissions to RCLP of $208,305,
$116,563, and $97,618 for the years ended December 31, 1997, 1996, and
1995, respectively. Such payments have been recorded as deferred leasing
costs in the accompanying balance sheets.
F-10
<PAGE>
Independent Auditors' Report
The Board of Directors of Regency Realty Corporation and
RRC FL Five, Inc. :
We have audited the accompanying balance sheets of RRC FL Five, Inc. as of
December 31, 1997 and 1996, and the related statements of operations,
stockholder's equity, and cash flows for each of the years in the three-year
period ended December 31, 1997. These financial statements are the
responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of RRC FL Five, Inc. as of
December 31, 1997 and 1996, and the results of its operations and its cash
flows for each of the years in the three-year period ended December 31, 1997,
in conformity with generally accepted accounting principles.
KPMG LLP
Jacksonville, Florida
December 11, 1998
F-11
<PAGE>
RRC FL FIVE, INC.
Balance Sheets
<TABLE>
<CAPTION>
December 31,
September ----------------------
30, 1998 1997 1996
----------- ---------- ----------
(unaudited)
<S> <C> <C> <C>
ASSETS
------
Cash...................................... $ 187,429 64,252 44,542
Cash restricted for tenants' security
deposits................................. 73,860 48,653 48,439
Property and buildings, at cost (note 2):
Land.................................... 2,751,094 2,751,094 2,751,094
Buildings and improvements.............. 9,474,520 9,435,081 9,427,833
----------- ---------- ----------
12,225,614 12,186,175 12,178,927
Less accumulated depreciation........... 1,992,106 1,635,974 1,165,150
----------- ---------- ----------
Net property and buildings............ 10,233,508 10,550,201 11,013,777
----------- ---------- ----------
Other assets:
Accounts receivable and other assets.... 140,638 238,530 226,993
Deferred leasing costs, less accumulated
amortization........................... 239,752 230,481 234,328
----------- ---------- ----------
Total other assets.................... 380,390 469,011 461,321
----------- ---------- ----------
$10,875,187 11,132,117 11,568,079
=========== ========== ==========
LIABILITIES AND STOCKHOLDER'S EQUITY
------------------------------------
Liabilities:
Mortgage loan payable (note 2).......... $ 8,633,856 8,713,253 8,823,403
Accounts payable and other liabilities.. 287,303 5,241 20,373
Tenants' security deposits.............. 73,860 48,653 48,439
----------- ---------- ----------
Total liabilities..................... 8,995,019 8,767,147 8,892,215
----------- ---------- ----------
Stockholder's equity
Common stock $.01 par value per share:
10,000 shares authorized, issued and
outstanding............................ 100 100 100
Additional paid in capital.............. 3,125,591 3,250,449 3,065,296
Accumulated deficit..................... (1,245,523) (885,579) (389,532)
----------- ---------- ----------
Total stockholder's equity............ 1,880,168 2,364,970 2,675,864
----------- ---------- ----------
$10,875,187 11,132,117 11,568,079
=========== ========== ==========
</TABLE>
See accompanying notes to financial statements.
F-12
<PAGE>
RRC FL FIVE, INC.
Statements of Operations
<TABLE>
<CAPTION>
Nine months ended
September 30, Year ended December 31,
--------------------- -------------------------------
1998 1997 1997 1996 1995
---------- --------- --------- --------- ---------
(unaudited)
<S> <C> <C> <C> <C> <C>
Revenues:
Rental income......... $ 771,116 774,221 1,035,342 1,048,489 1,194,189
Tenant reimbursements. 254,515 235,303 305,979 381,809 466,375
Other income.......... 40,027 36,272 54,143 109,289 39,561
---------- --------- --------- --------- ---------
Total revenues...... 1,065,658 1,045,796 1,395,464 1,539,587 1,700,125
---------- --------- --------- --------- ---------
Expenses:
Operating and
maintenance.......... 187,032 194,961 255,702 267,789 249,821
Depreciation and
amortization......... 397,599 390,220 520,571 514,085 500,510
General and
administrative....... 42,801 40,856 55,456 70,329 88,889
Real estate taxes..... 179,913 174,393 226,336 233,880 235,989
Interest.............. 618,257 626,113 833,446 843,036 728,738
---------- --------- --------- --------- ---------
Total expenses...... 1,425,602 1,426,543 1,891,511 1,929,119 1,803,947
---------- --------- --------- --------- ---------
Net loss............ $ (359,944) (380,747) (496,047) (389,532) (103,822)
========== ========= ========= ========= =========
</TABLE>
See accompanying notes to financial statements.
F-13
<PAGE>
RRC FL FIVE, INC.
Statements of Stockholder's Equity
<TABLE>
<CAPTION>
Additional Total
Common Paid In Accumulated Stockholder's
Stock Capital Deficit Equity
------ ---------- ----------- -------------
<S> <C> <C> <C> <C>
Balance at December 31, 1994...... $100 11,858,590 489,674 $12,348,364
Dividends......................... -- (8,614,148) (385,852) (9,000,000)
Additional paid in capital
(dividends), net................. -- (61,091) -- (61,091)
Net loss.......................... -- -- (103,822) (103,822)
---- ---------- ---------- -----------
Balance at December 31, 1995...... 100 3,183,351 -- 3,183,451
Additional paid in capital
(dividends), net................. -- (118,055) -- (118,055)
Net loss.......................... -- -- (389,532) (389,532)
---- ---------- ---------- -----------
Balance at December 31, 1996...... 100 3,065,296 (389,532) 2,675,864
Additional paid in capital
(dividends), net................. -- 185,153 -- 185,153
Net loss.......................... -- -- (496,047) (496,047)
---- ---------- ---------- -----------
Balance at December 31, 1997...... 100 3,250,449 (885,579) 2,364,970
Additional paid in capital
(dividends), net (unaudited)..... -- (124,858) -- (124,858)
Net Loss (unaudited).............. -- -- (359,944) (359,944)
---- ---------- ---------- -----------
Balance at September 30, 1998
(unaudited)...................... $100 3,125,591 (1,245,523) $ 1,880,168
==== ========== ========== ===========
</TABLE>
See accompanying notes to financial statements.
F-14
<PAGE>
RRC FL FIVE, INC.
Statements of Cash Flows
<TABLE>
<CAPTION>
Nine months ended
September 30, Year ended December 31,
------------------- ------------------------------
1998 1997 1997 1996 1995
--------- -------- -------- -------- ----------
(unaudited)
<S> <C> <C> <C> <C> <C>
Cash flows from operating
activities:
Net loss................. $(359,944) (380,747) (496,047) (389,532) (103,822)
Adjustments to reconcile
net income to net cash
provided by (used in)
operating activities:
Depreciation and
amortization........... 397,599 390,220 520,571 514,085 500,510
Deferred costs.......... (50,738) (7,312) (45,900) (26,145) (17,919)
Changes in assets and
liabilities:
Accounts receivable and
other assets.......... 97,892 23,501 (11,537) 121,458 (117,179)
Accounts payable and
other liabilities..... 282,062 143,391 (15,132) 21,066 (18,181)
Cash restricted for
tenants' security
deposits.............. (25,207) (1,192) (214) 27,075 6,667
Tenants' security
deposits.............. 25,207 1,192 214 (27,075) (6,667)
--------- -------- -------- -------- ----------
Net cash provided by
(used in)
Operating activities. 366,871 169,053 (48,045) 240,932 243,409
--------- -------- -------- -------- ----------
Cash flows from investing
activities:
Additions to property and
buildings............... (39,439) (7,248) (7,248) (42,437) (62,546)
--------- -------- -------- -------- ----------
Cash flows from financing
activities:
Proceeds from mortgage
loan.................... -- -- -- -- 9,000,000
Dividends from
refinancing proceeds.... -- -- -- -- (9,000,000)
Principal payments on
mortgage loan........... (79,397) (81,584) (110,150) (108,009) (68,588)
Additional paid in
capital (dividends),
net..................... (124,858) 103,249 185,153 (118,055) (61,091)
--------- -------- -------- -------- ----------
Net cash provided by
(used in) financing
activities........... (204,255) 21,665 75,003 (226,064) (129,679)
--------- -------- -------- -------- ----------
Net change in cash.... 123,177 183,470 19,710 (27,569) 51,184
Cash at beginning of
period................... 64,252 44,542 44,542 72,111 20,927
--------- -------- -------- -------- ----------
Cash at end of period..... $ 187,429 228,012 64,252 44,542 72,111
========= ======== ======== ======== ==========
Supplemental disclosure of
cash flow information:
Cash paid for interest... $ 618,257 626,113 833,446 843,036 728,738
========= ======== ======== ======== ==========
</TABLE>
See accompanying notes to financial statements.
F-15
<PAGE>
RRC FL FIVE, INC.
NOTES TO FINANCIAL STATEMENTS
December 31, 1997, 1996 and 1995
(1) Summary of Significant Accounting Policies
(a) Company Structure
RRC FL Five, Inc. (the Company) was formed as a Florida corporation for
the purpose of acquiring, leasing and operating Aventura Shopping Center a
102,876 square foot shopping center located in Miami, Florida. The Company
is 100% owned by Regency Realty Corporation (RRC). Aventura, which was
constructed during 1974, was acquired in 1994 for approximately $12.1
million. At December 31, 1997, its aggregate cost, for federal income tax
purposes was approximately $2.6 million.
(b) Method of Accounting
The accompanying financial statements were prepared on the accrual basis
of accounting. No provision for income taxes is made because the Company
is a qualified REIT subsidiary of RRC, and accordingly such subsidiaries
are not subject to income taxes under the Internal Revenue Code.
(c) Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires the Company's management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the
date of the financial statements and the reported amounts of revenues and
expenses during the reporting period. Actual results could differ from
those estimates.
(d) Property and Buildings
Property and building are recorded at cost. Major additions and
improvements to property and buildings are capitalized to the property
accounts, while replacements, maintenance, and repairs which do not
improve or extend the useful lives of the respective assets are reflected
in operations. Depreciation is computed using the straight-line method
over the estimated useful lives of the property and buildings, which is 39
years for buildings and improvements and the life of the lease term for
tenant improvements.
(e) Revenue Recognition
The Company leases space to tenants under agreements with varying terms.
Leases are accounted for as operating leases with minimum rent recognized
on a straight-line basis over the term of the lease regardless of when
payments are due. Contingent rentals are included in income in the period
earned.
(f) Deferred Costs
Deferred costs consist of costs associated with leasing the property. Such
costs are deferred and amortized using the straight-line method over the
terms of the respective leases.
(g) Cash and Cash Equivalents
For the purposes of the statement of cash flows, the Company considers all
instruments with a maturity of 90 days or less at purchase to be cash
equivalents.
(h) Impairment of Long-Lived Assets
The Company follows the provisions of Statement of Financial Accounting
Standards No. 121, "Accounting for the Impairment of Long-Lived Assets and
Long-Lived Assets to be Disposed Of". This Statement requires that long-
lived assets be reviewed for impairment whenever events or changes in
F-16
<PAGE>
RRC FL FIVE, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
circumstances indicate that the carrying amount of an asset may not be
recoverable. Recoverablility of assets to be held and used is measured by
comparison of the carrying amount of an asset to future net cash flows
expected to be generated by the asset. If such assets are considered to be
impaired, the impairment to be recognized is measured by the amount by
which the carrying amounts of the assets exceed their fair value, less
costs to sell.
(i) Interim Unaudited Financial Statements
The accompanying interim financial statements have been prepared by the
Company, without audit, and in the opinion of management reflect all
normal recurring adjustments necessary for a fair presentation of the
results for the unaudited periods presented. Certain information in
footnote disclosures normally included in the financial statements
prepared in accordance with generally accepted accounting principles have
been condensed or omitted.
(2) Mortgage Loan Payable
Mortgage note payable to a bank, bearing interest at 9.5% per annum,
payable in monthly installments of $78,633, including principal and
interest, maturing on March 1, 2002. The mortgage loan is secured by the
property and buildings of the Company.
Principal maturities on the mortgage loan is as follows:
<TABLE>
<CAPTION>
Year ending December 31, Amount
------------------------ ----------
<S> <C>
1998........................................................ $ 120,062
1999........................................................ 131,978
2000........................................................ 145,076
2001........................................................ 159,475
2002........................................................ 8,156,662
----------
$8,713,253
==========
</TABLE>
(3) Leases
The Company has various tenant leases with terms that expire through 2009.
Future minimum rental payments under noncancelable operating leases as of
December 31, 1997, including renewed terms and new tenants, are as
follows:
<TABLE>
<CAPTION>
Year ending December 31, Amount
------------------------ ----------
<S> <C>
1998........................................................ $ 948,894
1999........................................................ 1,011,365
2000........................................................ 944,773
2001........................................................ 899,212
2002........................................................ 870,641
Thereafter.................................................. 2,557,965
----------
$7,232,850
==========
</TABLE>
Most tenants are responsible for payment or reimbursement of their
proportionate share of taxes, insurance, and common area expenses.
During each of 1997, 1996, and 1995, one tenant, Publix Supermarkets, paid
minimum rents totaling $107,724, which exceeded 10% of the total minimum
rent earned by the Company.
F-17
<PAGE>
RRC FL FIVE, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(4) Related Party Transactions
The Company paid fees for property management to RRC of $55,252, $60,170,
and $29,372 for the years ended December 31, 1997, 1996, and 1995,
respectively. In addition, during 1996 and 1995 the Company paid RRG, an
affiliate of RRC, $9,000 and $12,000, respectively, for asset management
services.
The Company paid tenant lease commissions to RRC of $45,900, $26,145 and
$17,919 for the years ended December 31, 1997, 1996, and 1995,
respectively. Such payments have been recorded as deferred leasing costs
in the accompanying balance sheets.
F-18
<PAGE>
Independent Auditors' Report
The Board of Directors of Regency Realty Corporation and
RRC Acquisitions, Inc.:
We have audited the accompanying balance sheets of RRC Acquisitions, Inc. as
of December 31, 1997, and the related statements of operations, stockholder's
equity, and cash flows for the year ended December 31, 1997. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of RRC Acquisitions, Inc. as
of December 31, 1997, and the results of its operations and its cash flows for
the year ended December 31, 1997, in conformity with generally accepted
accounting principles.
KPMG LLP
Jacksonville, Florida
December 11, 1998
F-19
<PAGE>
RRC ACQUISITIONS, INC.
Balance Sheets
<TABLE>
<CAPTION>
December 31,
September 30, 1997
1998 ------------
------------- (unaudited)
<S> <C> <C>
ASSETS
------
Cash restricted for tenants' security deposits...... $ 29,914 30,714
Property and buildings, at cost:
Land.............................................. 3,866,500 3,866,500
Buildings and improvements........................ 14,166,106 14,019,614
----------- ----------
18,032,606 17,886,114
Less accumulated depreciation..................... 353,450 86,841
----------- ----------
Net property and buildings...................... 17,679,156 17,799,273
----------- ----------
Other assets:
Accounts receivable and other assets.............. 230,932 93,413
Deferred leasing costs, less accumulated
amortization..................................... 51,251 7,411
----------- ----------
Total other assets.............................. 282,183 100,824
----------- ----------
$17,991,253 17,930,811
=========== ==========
LIABILITIES AND STOCKHOLDER'S EQUITY
------------------------------------
Liabilities:
Accounts payable and other liabilities............ 144,767 188,264
Tenants' security deposits........................ 29,914 30,714
----------- ----------
Total liabilities............................... 174,681 218,978
----------- ----------
Stockholder's equity
Common stock $.01 par value per share:
10,000 shares authorized, issued and outstanding. 100 100
Additional paid in capital........................ 17,425,605 17,425,605
Retained earnings................................. 390,867 286,128
----------- ----------
Total stockholder's equity...................... 17,816,572 17,711,833
----------- ----------
$17,991,253 17,930,811
=========== ==========
</TABLE>
See accompanying notes to financial statements.
F-20
<PAGE>
RRC ACQUISITIONS, INC.
Statements of Operations
<TABLE>
<CAPTION>
Nine months
ended Year ended
September 30, December 31,
1998 1997
------------- ------------
(unaudited)
<S> <C> <C>
Revenues:
Rental income...................................... $1,377,387 393,892
Tenant reimbursements and other income............. 427,645 113,528
---------- -------
Total revenues................................... 1,805,032 507,420
---------- -------
Expenses:
Operating and maintenance.......................... 121,885 25,875
Depreciation and amortization...................... 271,613 87,277
General and administrative......................... 179,850 44,082
Real estate taxes.................................. 217,846 64,058
---------- -------
Total expenses................................... 791,194 221,292
---------- -------
Net income........................................ $1,013,838 286,128
========== =======
</TABLE>
See accompanying notes to financial statements.
F-21
<PAGE>
RRC ACQUISITIONS, INC.
Statements of Stockholder's Equity
<TABLE>
<CAPTION>
Additional Total
Common Paid In Retained Stockholder's
Stock Capital Earnings Equity
------ ---------- --------- -------------
<S> <C> <C> <C> <C>
Balance at December 31, 1996........ $100 -- -- 100
Additional paid in capital.......... -- 17,425,605 -- 17,425,605
Net income.......................... -- -- 286,128 286,128
---- ---------- --------- -----------
Balance at December 31, 1997........ 100 17,425,605 286,128 17,711,833
Additional paid in capital
(dividends), net (unaudited)....... -- -- (909,099) (909,099)
Net income (unaudited).............. -- -- 1,013,838 1,013,838
---- ---------- --------- -----------
Balance at September 30, 1998
(unaudited)........................ $100 17,425,605 390,867 17,816,572
==== ========== ========= ===========
</TABLE>
See accompanying notes to financial statements.
F-22
<PAGE>
RRC ACQUISITIONS, INC.
Statements of Cash Flows
<TABLE>
<CAPTION>
Nine months Year ended
ended December
September 30, 31,
1998 1997
------------- -----------
(unaudited)
<S> <C> <C>
Cash flows from operating activities:
Net income......................................... $1,013,838 286,128
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization..................... 271,613 87,277
Deferred costs.................................... (48,844) (7,847)
Changes in assets and liabilities:
Accounts receivable and other assets............. (137,519) (86,907)
Accounts payable and other liabilities........... (43,497) (40,263)
Cash restricted for tenants' security deposits... 800 --
Tenants' security deposits....................... (800) --
---------- -----------
Net cash provided by operating activities....... 1,055,591 238,388
---------- -----------
Cash flows from investing activities--purchase of
and additions to property and buildings............ (146,492) (17,663,993)
---------- -----------
Cash flows from financing activities--additional
paid in capital (dividends), net................... (909,099) 17,425,605
---------- -----------
Net change in cash.............................. -- --
Cash at beginning of period......................... -- --
---------- -----------
Cash at end of period............................... $ -- --
========== ===========
Supplemental disclosure of non-cash transactions
liabilities assumed in the acquisition of property
and buildings...................................... $ -- 222,121
========== ===========
</TABLE>
See accompanying notes to financial statements.
F-23
<PAGE>
RRC ACQUISITIONS, INC.
Notes to Financial Statements
December 31, 1997, 1996 and 1995
(1) Summary of Significant Accounting Policies
(a) Company Structure
RRC Acquisitions, Inc. (the Company) was formed as a Florida corporation
on November 16, 1993 for the purpose of acquiring, leasing and operating
shopping centers . The Company was inactive, and thus had no operations,
until November 10, 1997 when it purchased Kingsdale Shopping Center, a
255,177 square foot shopping center located in Columbus, Ohio, for
approximately $17.9 million. Kingsdale, which was constructed during 1997,
has an aggregate cost, for federal income tax purposes, of approximately
$17.9 million at December 31, 1997. The Company is 100% owned by Regency
Realty Corporation (RRC).
(b) Method of Accounting
The accompanying financial statements were prepared on the accrual basis
of accounting. No provision for income taxes is made because the Company
is a qualified REIT subsidiary of RRC, and accordingly such subsidiaries
are not subject to income taxes under the Internal Revenue Code.
(c) Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires the Company's management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the
date of the financial statements and the reported amounts of revenues and
expenses during the reporting period. Actual results could differ from
those estimates.
(d) Property and Buildings
Property and building are recorded at cost. Major additions and
improvements to property and buildings are capitalized to the property
accounts, while replacements, maintenance, and repairs which do not
improve or extend the useful lives of the respective assets are reflected
in operations. Depreciation is computed using the straight-line method
over the estimated useful lives of the property and buildings, which is 39
years for buildings and improvements and the life of the lease term for
tenant improvements.
(e) Revenue Recognition
The Company leases space to tenants under agreements with varying terms.
Leases are accounted for as operating leases with minimum rent recognized
on a straight-line basis over the term of the lease regardless of when
payments are due. Contingent rentals are included in income in the period
earned.
(f) Deferred Costs
Deferred costs consist of costs associated with leasing the property. Such
costs are deferred and amortized using the straight-line method over the
terms of the respective leases.
(g) Cash and Cash Equivalents
For the purposes of the statement of cash flows, the Company considers all
instruments with a maturity of 90 days or less at purchase to be cash
equivalents.
F-24
<PAGE>
RRC ACQUISITIONS, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
(h) Impairment of Long-Lived Assets
The Company follows the provisions of Statement of Financial Accounting
Standards No. 121, "Accounting for the Impairment of Long-Lived Assets and
Long-Lived Assets to be Disposed Of". This Statement requires that long-
lived assets be reviewed for impairment whenever events or changes in
circumstances indicate that the carrying amount of an asset may not be
recoverable. Recoverability of assets to be held and used is measured by
comparison of the carrying amount of an asset to future net cash flows
expected to be generated by the asset. If such assets are considered to be
impaired, the impairment to be recognized is measured by the amount by
which the carrying amounts of the assets exceed their fair value, less
costs to sell.
(i) Interim Unaudited Financial Statements
The accompanying interim financial statements have been prepared by the
Company, without audit, and in the opinion of management reflect all
normal recurring adjustments necessary for a fair presentation of the
results for the unaudited periods presented. Certain information in
footnote disclosures normally included in the financial statements
prepared in accordance with generally accepted accounting principles have
been condensed or omitted.
(2) Leases
The Company has various tenant leases with terms that expire through 2005.
Future minimum rental payments under noncancelable operating leases as of
December 31, 1997, including renewed terms and new tenants, are as
follows:
<TABLE>
<CAPTION>
Year ending December 31, Amount
------------------------ ----------
<S> <C>
1998........................................................ $1,705,882
1999........................................................ 1,482,964
2000........................................................ 1,368,729
2001........................................................ 998,212
2002........................................................ 767,701
Thereafter.................................................. 1,052,275
----------
$7,375,763
==========
</TABLE>
Most tenants are responsible for payment or reimbursement of their
proportionate share of taxes, insurance, and common area expenses.
(3) Related Party Transactions
The Company paid fees for property management to RRC of $19,640 for the
year ended December 31, 1997. No such fees were paid in 1996, and 1995,
respectively.
The Company paid tenant lease commissions to RRC of $7,847 for the year
ended December 31, 1997. No such commissions were paid in 1996, and 1995,
respectively. Such payments have been recorded as deferred leasing costs
in the accompanying balance sheets.
F-25
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
PROSPECTUS SUMMARY......................................................... 1
USE OF PROCEEDS............................................................ 8
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES........................... 8
REGENCY REALTY AND THE ISSUER.............................................. 9
THE GUARANTORS............................................................. 12
DESCRIPTION OF THE NOTES................................................... 14
PLAN OF DISTRIBUTION....................................................... 28
FEDERAL INCOME TAX CONSIDERATIONS.......................................... 29
ERISA CONSIDERATIONS....................................................... 33
LEGAL MATTERS.............................................................. 33
EXPERTS.................................................................... 33
INDEX TO FINANCIAL STATEMENTS.............................................. F-1
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Regency Centers, L.P.
-----------------
PROSPECTUS
-----------------
Notes
, 1999
<PAGE>
PART II
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution.
Set forth below is an estimate of the approximate amount of fees and expenses
payable by the Registrant in connection with the issuance and distribution of
the securities registered hereby.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee............ $166,800
NASD Fee....................................................... $ 30,500*
Transfer Agent's Fees.......................................... $ 5,000*
Printing and Delivery.......................................... $ 50,000*
Legal Fees and Expenses........................................ $120,000*
Accounting Fees and Expenses................................... $ 50,000*
Blue Sky Fees and Expenses..................................... $ 10,000*
Depositary's Fees.............................................. $ 5,000*
Trustee's Fees................................................. $ 10,000*
Fees of Rating Agencies........................................ $ 70,000*
Miscellaneous.................................................. $ 32,700*
--------
Total.......................................................... $550,000*
========
</TABLE>
- --------
*Estimated
Item 15. Indemnification of Directors and Officers.
Regency Realty Corporation's officers and directors are and will be indemnified
under Florida and Delaware law, the charter and by-laws of Regency Realty
Corporation, and the partnership agreement of Regency Centers, L.P.
The Florida Business Corporation Act (the "Florida Act"), under which Regency
Realty, RRC FL Five, Inc., and RRC Acquisitions, Inc. are organized, permits a
Florida corporation to indemnify a present or former director or officer of the
corporation (and certain other persons serving at the request of the
corporation in related capacities) for liabilities, including legal expenses,
arising by reason of service in such capacity if such person shall have acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and in any criminal proceeding if such
person had no reasonable cause to believe his conduct was unlawful. However, in
the case of actions brought by or in the right of the corporation, no
indemnification may be made with respect to any matter as to which such
director or officer shall have been adjudged liable, except in certain limited
circumstances.
Article X of Regency Realty's Bylaws provides that Regency Realty shall
indemnify directors and executive officers to the fullest extent now or
hereafter permitted by the Florida Act. In addition, Regency Realty has entered
into Indemnification Agreements with its directors and executive officers in
which it has agreed to indemnify such persons to the fullest extent now or
hereafter permitted by the Florida Act.
The partnership agreement of Regency Centers, L.P. also provides for
indemnification of Regency Realty and its officers and directors against any
and all losses, claims, damages, liabilities, joint or several, expenses
(including legal fees and expenses), judgments, fines, settlements, and other
amounts arising from any and all claims, demands, actions, suits or
proceedings, civil, criminal, administrative or investigative, that relate to
the operations of the partnership as set forth in the partnership agreement in
which any indemnitee may be involved, or is threatened to be involved, unless
it is established that (i) the act or omission of the indemnitee was material
to the matter giving rise to the proceeding and either was committed in bad
faith or was the result of active and deliberate dishonesty, (ii) the
indemnitee actually received an improper personal benefit in money,
II-1
<PAGE>
property or services, or (iii) in the case of a criminal proceeding, the
indemnitee had cause to believe that the act or omission was unlawful. The
termination of any proceeding by judgment, order or settlement does not create
a presumption that the indemnitee did not meet the requisite standard of
conduct set forth in the respective partnership agreement section on
indemnification. The termination of any proceeding by conviction or upon a plea
of nolo contendere or its equivalent, or an entry of an order of probation
before judgment creates a rebuttable presumption that the indemnitee acted in a
manner contrary to that specified in the indemnification section of the
partnership agreement. Any indemnification pursuant to the Regency Centers,
L.P. partnership agreement may only be made out of the assets of the
partnership.
The Agreement of Limited Partnership of Regency Office Partnership, L.P., a
Delaware limited partnership provides that neither its general partner, nor any
affiliate, nor any shareholder, officer, director, partner or employee of such
general partner or any affiliate shall be liable, responsible or accountable in
damages or otherwise to any of the limited partners or to such partnership for
any act or omission performed or omitted by them in good faith, provided that
they were not guilty of gross negligence or willful misconduct. Except for
actions or omissions constituting gross negligence or willful misconduct, the
partnership agreement provides that such partnership shall indemnify its
general partner, each affiliate and each shareholder, officer, director,
partner and employee of such general partner or any affiliate, for any loss,
liability, damage, or expense incurred by them on behalf of the partnership or
in furtherance of the partnership's interests, including reasonable attorneys'
fees and expenses.
Item 16. Exhibits
The exhibits to this Registration Statement are listed in the Exhibit Index,
which appears immediately after the signature page and is incorporated herein
by this reference.
Item 17. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) under the Securities
Act of 1933, if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the Registrant pursuant to section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
II-2
<PAGE>
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
(d) The undersigned Registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under Section
310(a) of the Trust Indenture Act (the "TIA") in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the TIA.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Jacksonville, State of Florida, on February 24,
1999.
Regency Centers, L.P.
By:Regency Realty Corporation,
General Partner
/s/ Martin E. Stein, Jr.
By: _________________________________
Martin E. Stein, Jr., Chairman of
the Board and Chief Executive
Officer
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears on the
Signature Page to this Registration Statement constitutes and appoints Martin
E. Stein, Jr., Bruce M. Johnson, J. Christian Leavitt and Robert L. Miller,
Jr., and each or any of them, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement, including any amendment or registration statement filed pursuant to
Rule 462, and to file the same, with all exhibits hereto, and other documents
in connection therewith, with the Securities and Exchange Commission, and
grants unto said attorneys-in-fact and agents, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
about the premises, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents or his or her substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Date: February 24, 1999 /s/ Martin E. Stein, Jr.
-------------------------------------
Martin E. Stein, Jr., Chairman of
the Board and Chief Executive
Officer
Date: February 24, 1999 /s/ Bruce M. Johnson
-------------------------------------
Bruce M. Johnson, Managing Director
and Principal Financial Officer
Date: February 24, 1999 /s/ J. Christian Leavitt
-------------------------------------
J. Christian Leavitt, Senior Vice
President, Secretary, Treasurer and
Principal Accounting Officer
II-4
<PAGE>
Date: February 24, 1999
-------------------------------------
Joan W. Stein, Chairman Emeritus and
Director
Date: February 24, 1999 /s/ Richard W. Stein
-------------------------------------
Richard W. Stein, Director
Date: February 24, 1999 /s/ Edward L. Baker
-------------------------------------
Edward L. Baker, Director
Date: February 24, 1999 /s/ Raymond L. Bank
-------------------------------------
Raymond L. Bank, Director
Date: February 24, 1999
-------------------------------------
J. Alexander Branch III, Director
Date: February 24, 1999 /s/ A.R. Carpenter
-------------------------------------
A.R. Carpenter, Director
Date: February 24, 1999 /s/ J. Dix Druce, Jr.
-------------------------------------
J. Dix Druce, Jr., Director
Date: February 24, 1999
-------------------------------------
Albert Ernest, Jr., Director
Date: February 24, 1999 /s/ Douglas S. Luke
-------------------------------------
Douglas S. Luke, Director
Date: February 24, 1999 /s/ Mary Lou Rogers
-------------------------------------
Mary Lou Rogers, Director
Date: February 24, 1999
-------------------------------------
Thomas B. Allin, Director
Date: February 24, 1999 /s/ Lee S. Wielansky
-------------------------------------
Lee S. Wielansky, Director
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Jacksonville, State of Florida, on February 24,
1999.
Regency Realty Corporation
/s/ Martin E. Stein, Jr.
By __________________________________
Martin E. Stein, Jr., Chairman of
the
Board and Chief Executive Officer
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears on the
Signature Page to this Registration Statement constitutes and appoints Martin
E. Stein, Jr., Bruce M. Johnson, J. Christian Leavitt and Robert L. Miller,
Jr., and each or any of them, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement, including any amendment or registration statement filed pursuant to
Rule 462, and to file the same, with all exhibits hereto, and other documents
in connection therewith, with the Securities and Exchange Commission, and
grants unto said attorneys-in-fact and agents, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
about the premises, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents or his or her substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Date: February 24, 1999 /s/ Martin E. Stein, Jr.
-------------------------------------
Martin E. Stein, Jr., Chairman of
the
Board and Chief Executive Officer
Date: February 24, 1999 /s/ Bruce M. Johnson
-------------------------------------
Bruce M. Johnson, Managing Director
and
Principal Financial Officer
Date: February 24, 1999 /s/ J. Christian Leavitt
-------------------------------------
J. Christian Leavitt, Senior Vice
President,
Secretary, Treasurer and Principal
Accounting Officer
Date: February 24, 1999
-------------------------------------
Joan W. Stein, Chairman Emeritus and
Director
II-6
<PAGE>
Date: February 24, 1999 /s/ Richard W. Stein
-------------------------------------
Richard W. Stein, Director
Date: February 24, 1999 /s/ Edward L. Baker
-------------------------------------
Edward L. Baker, Director
Date: February 24, 1999 /s/ Raymond L. Bank
-------------------------------------
Raymond L. Bank, Director
Date: February 24, 1999
-------------------------------------
J. Alexander Branch III, Director
Date: February 24, 1999 /s/ A.R. Carpenter
-------------------------------------
A.R. Carpenter, Director
Date: February 24, 1999 /s/ J. Dix Druce, Jr.
-------------------------------------
J. Dix Druce, Jr., Director
Date: February 24, 1999
-------------------------------------
Albert Ernest, Jr., Director
Date: February 24, 1999 /s/ Douglas S. Luke
-------------------------------------
Douglas S. Luke, Director
Date: February 24, 1999 /s/ Mary Lou Rogers
-------------------------------------
Mary Lou Rogers, Director
Date: February 24, 1999
-------------------------------------
Thomas B. Allin, Director
Date: February 24, 1999 /s/ Lee S. Wielansky
-------------------------------------
Lee S. Wielansky, Director
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Jacksonville, State of Florida, on February 24,
1999.
Regency Office Partnership, L.P.
By: Regency Centers, L.P.,
General Partner
By: Regency Realty Corporation,
General Partner
/s/ Martin E. Stein, Jr.
By __________________________________
Martin E. Stein, Jr., Chairman of
the Board and Chief Executive
Officer
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears on the
Signature Page to this Registration Statement constitutes and appoints Martin
E. Stein, Jr., Bruce M. Johnson, J. Christian Leavitt and Robert L. Miller,
Jr., and each or any of them, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement, including any amendment or registration statement filed pursuant to
Rule 462, and to file the same, with all exhibits hereto, and other documents
in connection therewith, with the Securities and Exchange Commission, and
grants unto said attorneys-in-fact and agents, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
about the premises, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents or his or her substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Date: February 24, 1999 /s/ Martin E. Stein, Jr.
-------------------------------------
Martin E. Stein, Jr., Chairman of
the Board and Chief Executive
Officer
Date: February 24, 1999 /s/ Bruce M. Johnson
-------------------------------------
Bruce M. Johnson, Managing Director
and Principal Financial Officer
II-8
<PAGE>
Date: February 24, 1999 /s/ J. Christian Leavitt
-------------------------------------
J. Christian Leavitt, Senior Vice
President, Secretary, Treasurer and
Principal Accounting Officer
Date: February 24, 1999 -------------------------------------
Joan W. Stein, Chairman Emeritus and
Director
Date: February 24, 1999 /s/ Richard W. Stein
-------------------------------------
Richard W. Stein, Director
Date: February 24, 1999 /s/ Edward L. Baker
-------------------------------------
Edward L. Baker, Director
Date: February 24, 1999 /s/ Raymond L. Bank
-------------------------------------
Raymond L. Bank, Director
Date: February 24, 1999 -------------------------------------
J. Alexander Branch III, Director
Date: February 24, 1999 /s/ A.R. Carpenter
-------------------------------------
A.R. Carpenter, Director
Date: February 24, 1999 /s/ J. Dix Druce, Jr.
-------------------------------------
J. Dix Druce, Jr., Director
Date: February 24, 1999
-------------------------------------
Albert Ernest, Jr., Director
Date: February 24, 1999 /s/ Douglas S. Luke
-------------------------------------
Douglas S. Luke, Director
Date: February 24, 1999 /s/ Mary Lou Rogers
-------------------------------------
Mary Lou Rogers, Director
Date: February 24, 1999
-------------------------------------
Thomas B. Allin, Director
Date: February 24, 1999 /s/ Lee S. Wielansky
-------------------------------------
Lee S. Wielansky, Director
II-9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Jacksonville, State of Florida, on February 24,
1999.
RRC FL Five, Inc.
/s/ Martin E. Stein, Jr.
By __________________________________
Martin E. Stein, Jr., Chairman of
the Board and Chief Executive
Officer
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears on the
Signature Page to this Registration Statement constitutes and appoints Martin
E. Stein, Jr., Bruce M. Johnson, J. Christian Leavitt and Robert L. Miller,
Jr., and each or any of them, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement, including any amendment or registration statement filed pursuant to
Rule 462, and to file the same, with all exhibits hereto, and other documents
in connection therewith, with the Securities and Exchange Commission, and
grants unto said attorneys-in-fact and agents, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
about the premises, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents or his or her substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Date: February 24, 1999 /s/ Martin E. Stein, Jr.
-------------------------------------
Martin E. Stein, Jr., Chairman of
the Board and Chief Executive
Officer
Date: February 24, 1999 /s/ Bruce M. Johnson
-------------------------------------
Bruce M. Johnson, Managing Director
and Principal Financial Officer
Date: February 24, 1999 /s/ J. Christian Leavitt
-------------------------------------
J. Christian Leavitt, Senior Vice
President, Secretary, Treasurer and
Principal Accounting Officer
Date: February 24, 1999 /s/ Richard W. Stein
-------------------------------------
Richard W. Stein, Director
Date: February 24, 1999 -------------------------------------
Thomas B. Allin, Director
II-10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Jacksonville, State of Florida, on February 24,
1999.
RRC Acquisitions, Inc.
/s/ Martin E. Stein, Jr
By __________________________________
Martin E. Stein, Jr., Chairman of
the Board and Chief Executive
Officer
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears on the
Signature Page to this Registration Statement constitutes and appoints Martin
E. Stein, Jr., Bruce M. Johnson, J. Christian Leavitt and Robert L. Miller,
Jr., and each or any of them, his or her true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement, including any amendment or registration statement filed pursuant to
Rule 462, and to file the same, with all exhibits hereto, and other documents
in connection therewith, with the Securities and Exchange Commission, and
grants unto said attorneys-in-fact and agents, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
about the premises, as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents or his or her substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Date: February 24, 1999 /s/ Martin E. Stein, Jr.
-------------------------------------
Martin E. Stein, Jr., Chairman of
the Board and Chief Executive
Officer
Date: February 24, 1999 /s/ Bruce M. Johnson
-------------------------------------
Bruce M. Johnson, Managing Director
and Principal Financial Officer
Date: February 24, 1999 /s/ J. Christian Leavitt
-------------------------------------
J. Christian Leavitt, Senior Vice
President, Secretary, Treasurer and
Principal Accounting Officer
Date: February 24, 1999 /s/ Richard W. Stein
-------------------------------------
Richard W. Stein, Director
Date: February 24, 1999 -------------------------------------
Thomas B. Allin, Director
II-11
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequential
Page No.
----------
<C> <S> <C>
*1.1 Form of Underwriting Agreement
4.1 Form of Indenture relating to Notes
4.2 Form of Note (included in indenture filed as Exhibit 4.1)
4.3 Form of Guarantee (included in indenture filed as Exhibit
4.1)
*5. Opinion of Foley & Lardner as to the legality of the
securities to be issued
8. Opinion of Foley & Lardner as to Tax Matters and REIT
Qualification
12. Statement re Computation of Ratios
*23.1 Consent of Foley & Lardner (included in Opinion filed as
Exhibit 8)
23.2 Consent of KPMG LLP
23.3 Consent of PricewaterhouseCoopers LLP
25.1 Statement of Eligibility and Qualifications of Trustee
</TABLE>
- --------
*If applicable, to be filed by post-effective amendment or by a current report
on Form 8-K pursuant to the Securities Exchange Act of 1934, as appropriate.
<PAGE>
____________________________________________________________
REGENCY CENTERS, L.P.
AND
THE GUARANTORS NAMED
ON THE SIGNATURE
PAGES HEREOF
TO
FIRST UNION NATIONAL BANK
Trustee
________________
Indenture
Dated as of _______ __, 1999
________________
____________________________________________________________
<PAGE>
REGENCY CENTERS, L.P.
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- ---------
<S> <C>
(S) 310(a)(1) ............................... 609
(a)(2) ............................... 609
(a)(3) ............................... Not
Applicable
(a)(4) ............................... Not
Applicable
(b) ............................... 608
610
(S) 311(a) ............................... 613
(b) ............................... 613
(b)(2) ............................... 703(a)(2)
703(b)
(S) 312(a) ............................... 701
702(a)
(b) ............................... 702(b)
(c) ............................... 702(c)
(S) 313(a) ............................... 703(a)
(b) ............................... 703(b)
(c) ............................... 703(a)
703(b)
(d) ............................... 703(c)
(S) 314(a) ............................... 704
(a)(4) ............................... 101
1011
(b) ............................... Not
Applicable
(c)(1) ............................... 102
(c)(2) ............................... 102
(c)(3) ............................... Not
Applicable
(d) ............................... Not
Applicable
(e) ............................... 102
(S) 315(a) ............................... 601
(b) ............................... 602
703(a)(6)
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
(c) ............................... 601
(d) ............................... 601
(e) ............................... 514
Trust Indenture Indenture
Act Section Section
- --------------- ---------
(S) 316(a) ............................... 101
(a)(1)(A) ............................... 502
512
(a)(1)(B) ............................... 513
(a)(2) ............................... Not
Applicable
(b) ............................... 508
(c) ............................... 104
(S) 317(a)(1) ............................... 503
(a)(2) ............................... 504
(b) ............................... 1003
(S) 318(a) ............................... 107
</TABLE>
-ii-
<PAGE>
_______________
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Parties ........................................................................... 1
Recitals of the Issuer............................................................. 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions....................................................... 1
Acquired Indebtedness............................................. 2
Act............................................................... 3
Affiliate......................................................... 3
Annual Service Charge............................................. 3
Applicable Procedures............................................. 3
Authenticating Agent ............................................. 3
Board of Directors ............................................... 3
Board Resolution ................................................. 3
Business Day ..................................................... 3
Capital Stock..................................................... 4
Commission ....................................................... 4
Common Stock ..................................................... 4
Consolidated Income Available for Debt
Service......................................................... 4
Consolidated Net Worth ........................................... 4
Corporate Trust Office ........................................... 5
corporation....................................................... 5
Defaulted Interest................................................ 5
Depositary ....................................................... 5
Disqualified Stock ............................................... 5
DTC .............................................................. 6
Earnings from Operations ......................................... 6
Encumbrance....................................................... 6
Euroclear......................................................... 6
Event of Default ................................................. 6
Exchange Act ..................................................... 6
Expiration Date................................................... 6
Global Security................................................... 6
Guaranteed Obligations ........................................... 6
</TABLE>
-iii-
<PAGE>
<TABLE>
<S> <C>
Guarantors ................................................... 6
Guaranty ..................................................... 6
Holder ....................................................... 7
Incur......................................................... 7
Indebtedness ................................................. 7
Indenture..................................................... 8
interest ..................................................... 8
Interest Payment Date......................................... 8
Investment Company Act ....................................... 8
Issuer ....................................................... 8
Issuer Request ............................................... 8
Issuer Order ................................................. 8
Make-Whole Amount............................................. 8
Maturity ..................................................... 9
Non-Recourse Indebtedness..................................... 9
Notice of Default............................................. 9
Officers' Certificate......................................... 9
Opinion of Counsel ........................................... 9
Original Issue Discount Security ............................. 10
Outstanding................................................... 10
pari passu ................................................... 11
Paying Agent ................................................. 12
Person ....................................................... 12
Predecessor Security ......................................... 12
Real Property Assets ......................................... 12
Recourse Indebtedness......................................... 12
Redemption Date............................................... 12
Redemption Price ............................................. 12
Regency....................................................... 12
Regular Record Date........................................... 12
Reinvestment Rate............................................. 13
Responsible Officer........................................... 13
Securities ................................................... 13
Securities Act ............................................... 13
Security Register............................................. 13
Special Record Date........................................... 13
Stated Maturity............................................... 14
Statistical Release........................................... 14
Subsidiary ................................................... 14
Total Assets ................................................. 14
Total Unencumbered Assets..................................... 14
Trust Indenture Act........................................... 14
Trustee....................................................... 15
Undepreciated Real Estate Assets ............................. 15
Unsecured Indebtedness ....................................... 15
U.S. Government Obligation ................................... 15
</TABLE>
-iv-
<PAGE>
<TABLE>
<S> <C>
Vice President ................................................... 15
Yield to Maturity................................................. 15
SECTION 102. Compliance Certificates and Opinions ............................. 15
SECTION 103. Form of Documents Delivered to
Trustee ........................................................ 16
SECTION 104. Acts of Holders; Record Dates .................................... 17
SECTION 105. Notices, Etc., to Trustee and Issuer ............................. 20
SECTION 106. Notice to Holders; Waiver......................................... 21
SECTION 107. Conflict with Trust Indenture Act................................. 21
SECTION 108. Effect of Headings and Table
of Contents..................................................... 22
SECTION 109. Successors and Assigns ........................................... 22
SECTION 110. Separability Clause .............................................. 22
SECTION 111. Benefits of Indenture............................................. 22
SECTION 112. GOVERNING LAW..................................................... 22
SECTION 113. Legal Holidays ................................................... 22
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally................................................... 23
SECTION 202. Form of Face of Security ......................................... 23
SECTION 203. Form of Reverse of Security....................................... 27
SECTION 204. Form of Trustee's Certificate of
Authentication.................................................. 33
SECTION 205. Form of Guarantee................................................. 33
ARTICLE THREE
The Securities
SECTION 301. Title and Terms................................................... 36
SECTION 302. Denominations..................................................... 40
SECTION 303. Execution, Authentication, Delivery
and Dating ..................................................... 40
SECTION 304. Temporary Securities ............................................. 42
SECTION 305. Global Securities................................................. 43
SECTION 306. Registration, Registration of
Transfer and Exchange........................................... 45
SECTION 307. Mutilated, Destroyed, Lost and
Stolen Securities............................................... 47
SECTION 308. Payment of Interest; Interest
Rights Preserved ............................................... 48
SECTION 309. Persons Deemed Owners............................................. 50
SECTION 310. Cancellation...................................................... 50
SECTION 311. Computation of Interest........................................... 50
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of
</TABLE>
-v-
<PAGE>
<TABLE>
<S> <C>
Indenture......................................................... 51
SECTION 402. Application of Trust Money ......................................... 52
ARTICLE FIVE
Remedies
SECTION 501. Events of Default................................................... 53
SECTION 502. Acceleration of Maturity; Rescission and
Annulment......................................................... 56
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee ........................................... 58
SECTION 504. Trustee May File Proofs of Claim ................................... 59
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities ......................................... 59
SECTION 506. Application of Money Collected ..................................... 60
SECTION 507. Limitation on Suits................................................. 60
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest ......................................................... 61
SECTION 509. Restoration of Rights and Remedies ................................. 62
SECTION 510. Rights and Remedies Cumulative ..................................... 62
SECTION 511. Delay or Omission Not Waiver ....................................... 62
SECTION 512. Control by Holders ................................................. 63
SECTION 513. Waiver of Past Defaults............................................. 63
SECTION 514. Undertaking for Costs............................................... 63
SECTION 515. Waiver of Stay or Extension Laws ................................... 64
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities................................. 64
SECTION 602. Notice of Defaults ................................................. 65
SECTION 603. Certain Rights of Trustee........................................... 65
SECTION 604. Not Responsible for Recitals or
Issuance of Securities............................................ 67
SECTION 605. May Hold Securities................................................. 67
SECTION 606. Money Held in Trust................................................. 67
SECTION 607. Compensation and Reimbursement ..................................... 67
SECTION 608. Disqualification; Conflicting
Interests......................................................... 68
SECTION 609. Corporate Trustee Required;
Eligibility....................................................... 68
SECTION 610. Resignation and Removal; Appointment
of Successor ..................................................... 69
SECTION 611. Acceptance of Appointment by
Successor......................................................... 71
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business ........................................... 73
</TABLE>
-vi-
<PAGE>
<TABLE>
<S> <C>
SECTION 613. Preferential Collection of Claims Against Issuer or the Guarantors.... 73
SECTION 614. Appointment of Authenticating Agent .................................. 73
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Issuer
SECTION 701. Issuer to Furnish Trustee Names and
Addresses of Holders ............................................... 75
SECTION 702. Preservation of Information;
Communications to Holders .......................................... 76
SECTION 703. Reports by Trustee ................................................... 77
SECTION 704. Reports by Issuer..................................................... 77
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Issuer May Consolidate, Etc. and
Purchases of Assets Only on
Certain Terms....................................................... 77
SECTION 802. Successor Substituted................................................. 79
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without
Consent of Holders ................................................. 80
SECTION 902. Supplemental Indentures with Consent
of Holders ......................................................... 81
SECTION 903. Execution of Supplemental Indentures ................................. 83
SECTION 904. Effect of Supplemental Indentures..................................... 83
SECTION 905. Conformity with Trust Indenture Act................................... 84
SECTION 906. Reference in Securities to Supplemental
Indentures ......................................................... 84
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and
Interest ........................................................... 84
SECTION 1002. Maintenance of Office or Agency....................................... 84
SECTION 1003. Money for Securities Payments to be
Held in Trust....................................................... 85
SECTION 1004. Existence............................................................. 87
SECTION 1005. Maintenance of Properties............................................. 87
SECTION 1006. Payment of Taxes and Other Claims..................................... 88
SECTION 1007. Maintenance of Insurance ............................................. 88
SECTION 1008. Limitations on Incurrence
</TABLE>
-vii-
<PAGE>
<TABLE>
<S> <C>
of Indebtedness..................................................... 88
SECTION 1009. [Intentionally Omitted]............................................... 90
SECTION 1010. Provision of Financial Information ................................... 90
SECTION 1011. Statement by Officers as to Default;
Compliance Certificates ........................................... 91
SECTION 1012. Waiver of Certain Covenants........................................... 91
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption................................................... 92
SECTION 1102. Applicability of Article ............................................. 92
SECTION 1103. Election to Redeem; Notice to Trustee ................................ 92
SECTION 1104. Selection by Trustee of Securities to
Be Redeemed......................................................... 93
SECTION 1105. Notice of Redemption ................................................. 94
SECTION 1106. Deposit of Redemption Price........................................... 95
SECTION 1107. Securities Payable on Redemption Date................................. 95
SECTION 1108. Securities Redeemed in Part........................................... 96
ARTICLE TWELVE
Guarantees
SECTION 1201. Guarantees ........................................................... 96
SECTION 1202. Guarantees Absolute................................................... 97
SECTION 1203. Waivers............................................................... 99
SECTION 1204. Waiver of Subrogation and
Contribution ....................................................... 100
SECTION 1205. Certain Agreements ................................................... 101
SECTION 1206. Execution and Delivery of Guarantees ................................. 103
SECTION 1207. No Waiver; Cumulative Remedies ....................................... 103
SECTION 1208. Continuing Guarantees................................................. 104
SECTION 1209. Severability ......................................................... 104
SECTION 1210. Limitation on Guarantor Liability..................................... 104
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Issuer's Option to Effect Defeasance or
Covenant Defeasance................................................. 105
SECTION 1302. Defeasance and Discharge ............................................. 105
SECTION 1303. Covenant Defeasance................................................... 106
SECTION 1304. Conditions to Defeasance or Covenant
Defeasance ......................................................... 106
SECTION 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions ..................................... 109
SECTION 1306. Reinstatement......................................................... 110
</TABLE>
-viii-
<PAGE>
<TABLE>
<S> <C>
ARTICLE FOURTEEN
SINKING FUNDS
Section 1401. Applicability of Article ............................... 111
Section 1402. Satisfaction of Sinking Fund Payments
with Securities....................................... 111
Section 1403. Redemption of Securities for Sinking
Fund ................................................. 112
</TABLE>
-ix-
<PAGE>
INDENTURE, dated as of ________ __, 1999, among REGENCY CENTERS, L.P., a
limited partnership duly organized and existing under the laws of the State of
Delaware (herein called the "Issuer"), having its principal office at 121 West
Forsyth Street, Suite 200, Jacksonville, FL 32202, the Guarantors named on the
signature pages hereof and First Union National Bank, a national banking
association duly organized and existing under the laws of the United States of
America, as Trustee (herein called the "Trustee").
RECITALS OF THE ISSUER
The Issuer has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of its unsecured debentures, notes
or other evidences of indebtedness (herein called the "Securities"), in each
case guaranteed by the Guarantors, of substantially the tenor hereinafter set
forth, to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the Issuer
and the Guarantors, in accordance with its and their terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
<PAGE>
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles (whether or not such is indicated herein), and, except as
otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted as consistently applied by the Issuer at the date of such
computation;
(4) unless otherwise specifically set forth herein, all calculations
or determinations of a Person shall be performed or made on a consolidated
basis in accordance with generally accepted accounting principles;
(5) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
(6) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Acquired Indebtedness" means Indebtedness of a Person (i) existing
at the time the Person becomes a Subsidiary or (ii) assumed in connection with
the acquisition of assets from the Person, in each case, other than Indebtedness
incurred in connection with, or in contemplation of, the Person becoming a
Subsidiary or that acquisition. Acquired Indebtedness shall be deemed to be
-2-
<PAGE>
incurred on the date of the related acquisition of assets from any Person or the
date the acquired Person becomes a Subsidiary.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, " control" when
used with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Annual Service Charge" for any period means the aggregate interest
expense for the period in respect of, and the amortization during the period of
any original issue discount of, Indebtedness of the Issuer and its Subsidiaries
and the amount of dividends which are payable during the period in respect of
any Disqualified Stock.
" Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of DTC or any successor depositary that apply to such transfer and
exchange.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors or similar
body of the Issuer or the Guarantors, as the case may be, or any duly authorized
committee of that board or similar body.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the general partner of the Issuer to have
been duly adopted by the Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
-3-
<PAGE>
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the City of New York
are authorized or obligated by law or executive order to close.
"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participations or other
ownership interests (however designated) of the Person and any rights (other
than debt securities convertible into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Consolidated Income Available for Debt Service" for any period means
Earnings from Operations of the Issuer and its Subsidiaries plus amounts which
have been deducted, and minus amounts which have been added, for the following
(without duplication): (i) interest expense on Indebtedness of the Issuer and
its Subsidiaries; (ii) provision for taxes of the Issuer and its Subsidiaries
based on income; (iii) amortization of debt discount; (iv) provisions for gains
and losses on properties and property depreciation and amortization; (v) the
effect of any noncash charge resulting from a change in accounting principles in
determining Earnings from Operations for the period; and (vi) amortization of
deferred charges.
"Consolidated Net Worth" of any Person means the consolidated equity
of such Person, determined on a consolidated basis in accordance with generally
accepted accounting principles, less amounts attributable to
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<PAGE>
Disqualified Stock of such Person; provided that, with respect to the Issuer,
--------
adjustments following the date of the Indenture to the accounting books and
records of the Issuer in accordance with Accounting Principles Board Opinions
Nos. 16 and 17 (or successor opinions thereto) or otherwise resulting from the
acquisition of control of the Issuer by another Person shall not be given effect
to.
"Corporate Trust Office" means the principal office of the Trustee in
the City of Jacksonville, Florida at which at any particular time its corporate
trust business shall be administered.
"corporation" means a corporation, association, company, joint-stock
company, limited liability company, partnership or business trust.
"Defaulted Interest" has the meaning set forth in Section 308.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, The Depository Trust Company for so long as it shall be a clearing
agency registered under the Exchange Act, or such successor as the Issuer shall
designate from time to time in an Officers' Certificate delivered to the
Trustee.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock of the Person which by the terms of that Capital Stock (or by the terms of
any security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise
(other than Capital Stock which is redeemable solely in exchange for common
stock), (ii) is convertible into or exchangeable or exercisable for Indebtedness
or Disqualified Stock or (iii) is redeemable at the option of the holder
thereof, in whole or in part (other than Capital Stock which is redeemable
solely in exchange for Capital Stock which is not Disqualified Stock or the
redemption price of which may, at the option of that Person, be paid in Capital
Stock which is not Disqualified Stock), in each case on or prior to the Stated
Maturity of the Securities of the relevant series; provided, however, that
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equity interests whose holders have
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<PAGE>
(or will have after the expiration of an initial holding period) the right to
have such equity interests redeemed for cash in an amount determined by the
value of the common stock of Regency do not constitute Disqualified Stock.
"DTC" means The Depository Trust Company, a New York corporation.
"Earnings from Operations" for any period means net earnings
excluding gains and losses on sales of investments, extraordinary items, and
property valuation losses, net, as reflected in the financial statements of the
Issuer and its Subsidiaries for the period determined on a consolidated basis in
accordance with generally accepted accounting principles.
"Encumbrance" means any mortgage, lien, charge, pledge or security
interest of any kind, except any mortgage, lien, charge, pledge or security
interest of any kind which secures debt of any Guarantor owed to the Issuer.
"Euroclear" means the Euroclear Clearance System (or any successor
securities clearing agency).
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" refers to the Securities Exchange Act of 1934 as it
may be amended and any successor act thereto.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means the security or securities that evidence all
or part of the Securities of any series and bear the legend set forth in Section
202 (or such legend as may be specified as contemplated by Section 301 for such
Securities).
"Guaranteed Obligations" has the meaning specified in Article 12.
"Guarantors" means the Persons executing a Guarantee on the date of
this Indenture until a successor Guarantor for such Person shall have become
such pursuant to
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<PAGE>
the applicable provisions of this Indenture, and thereafter "Guarantors" shall
include such successor Guarantor.
"Guaranty" means a guaranty of the Securities contained in Article 12
given by the Guarantors.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Incur" means, with respect to any indebtedness or other obligation
of any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, guarantee or otherwise become liable in respect of such indebtedness or
other obligation or the recording, as required pursuant to generally accepted
accounting principles or otherwise, of any such indebtedness or other obligation
on the balance sheet of such Person (and "Incurrence", "Incurred", "Incurrable"
and "Incurring" shall have meanings correlative to the foregoing); provided,
--------
however, that a change in generally accepted accounting principles that results
- -------
in an obligation of such Person that exists at such time becoming indebtedness
shall not be deemed an Incurrence of such indebtedness.
"Indebtedness" of the Issuer or any Subsidiary means any indebtedness
of the Issuer or any Subsidiary, whether or not contingent, in respect of (i)
borrowed money or indebtedness evidenced by bonds, notes, debentures or similar
instruments, (ii) borrowed money or indebtedness evidenced by bonds, notes,
debentures or similar instruments secured by any Encumbrance existing on
property owned by the Issuer or any Subsidiary, (iii) reimbursement obligations
in connection with any letters of credit actually issued or amounts representing
the balance deferred and unpaid of the purchase price of any property or
services, except any such balance that constitutes an accrued expense or trade
payable, or all conditional sale obligations under any title retention
agreement, (iv) the amount of all obligations of the Issuer or any Subsidiary
with respect to redemption, repayment or other repurchase of any Disqualified
Stock, and (v) any lease of property by the Issuer or any Subsidiary as lessee
which is reflected on the Issuer's consolidated balance sheet as a capitalized
lease in accordance with generally accepted accounting principles, to the
extent, in the case of items of indebtedness under (i) through (iv) above, that
any such items (other than letters of credit)
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<PAGE>
would appear as a liability on the Issuer's consolidated balance sheet in
accordance with generally accepted accounting principles, and also includes, to
the extent not otherwise included, any obligation of the Issuer or any
Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise
(other than for purposes of collection in the ordinary course of business),
Indebtedness of another Person (other than the Issuer or any Subsidiary) (it
being understood that Indebtedness shall be deemed to be incurred by the Issuer
or any Subsidiary whenever the Issuer or the Subsidiary shall create, assume,
guarantee or otherwise become liable in respect thereof).
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"Issuer" means the Person named as the "Issuer" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture and thereafter "Issuer"
shall mean such successor Person.
"Issuer Request" or " Issuer Order" means a written request or order
signed in the name of the Issuer by the Chairman of the Board of its general
partner, the President
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<PAGE>
or a Vice President of its general partner, and by its Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of its general partner, and
delivered to the Trustee.
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of any Security, the excess, if any, of (i) the aggregate
present value as of the date of such redemption or accelerated payment of each
dollar of principal being redeemed or paid and the amount of interest (exclusive
of interest accrued to the date of redemption or accelerated payment) that would
have been payable in respect of such dollar if such redemption or accelerated
payment had not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Reinvestment Rate (determined on the third
Business Day preceding the date such notice of Redemption is given or
declaration of acceleration is made) from the respective dates on which such
principal and interest would have been payable if such redemption or accelerated
payment had not been made, over (ii) the aggregate principal amount of the
Securities being redeemed or paid.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Non-Recourse Indebtedness" means Indebtedness for which the right of
recovery of the obligee thereof is limited to recourse against the Real Property
Assets securing such Indebtedness (subject to such limited exceptions to the
non-recourse nature of such Indebtedness such as fraud, misappropriation,
misapplication and environmental indemnities, as are usual and customary in like
transactions at the time of the incurrence of such Indebtedness).
"Notice of Default" means a written notice of the kind specified in
Section 501(5).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the
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<PAGE>
Secretary or an Assistant Secretary, of the general partner of the Issuer, and
delivered to the Trustee and containing the statement provided for in Section
102. One of the officers signing an Officers' Certificate given pursuant to
Section 1011 shall be the principal executive, financial or accounting officer
of the general partner of the Issuer.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Issuer, and who shall be acceptable to the Trustee, and
containing the statements provided for in Section 102.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities of any series,
means, as of the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
------
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Issuer) in trust or
set aside and segregated in trust by the Issuer (if the Issuer
shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed,
--------
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities as to which Defeasance has been effected
pursuant to Section 1302; and
(iv) Securities which have been paid pursuant to Section 307
or in exchange for or
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<PAGE>
in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof satisfactory to
it that such Securities are held by a bona fide purchaser in whose hands
such Securities are valid obligations of the Issuer;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Issuer or any other obligor upon the Securities or any Affiliate of
the Issuer or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent, waiver or other action, only Securities which the Trustee knows to be
so owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any Affiliate of the Issuer or of the Guarantors or of such other
obligor.
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<PAGE>
"pari passu", when used with respect to the ranking of any
---- -----
indebtedness of any Person in relation to other indebtedness of such Person,
means that each such indebtedness (a) either (i) is not subordinated in right of
payment to any other indebtedness of such Person or (ii) is subordinate in right
of payment to the same indebtedness of such Person as is the other and is so
subordinate to the same extent and (b) is not subordinate in right of payment to
the other or to any indebtedness of such Person as to which the other is not so
subordinate.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Issuer or of the Guarantors.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 307 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Real Property Assets" means as of any time, the real property assets
(including interests in participating mortgages in which the interest of the
Issuer or any Subsidiary therein is characterized as equity according to
generally accepted accounting principles) owned directly or indirectly by the
Issuer or any Subsidiary at such time.
"Recourse Indebtedness" shall mean Indebtedness of the Issuer or any
Subsidiary that is not Non-Recourse Indebtedness.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
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<PAGE>
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regency" means Regency Realty Corporation, a Florida corporation and
the parent company of the Issuer.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Reinvestment Rate" means the percentage established by Board
Resolution (or, in the absence of such a Board Resolution, 0.25% (twenty-five
one hundredths of one percent)) plus the arithmetic mean of the yields under the
respective heading "Week Ending" published in the Statistical Release under the
caption "Treasury Constant Maturities" for the maturity (rounded to the nearest
month) corresponding to the remaining life to maturity of the Securities of the
relevant series, as of the payment date of the principal being redeemed or paid.
If no maturity exactly corresponds to such maturity, yields for the two
published maturities most closely corresponding to such maturity shall be
calculated pursuant to the immediately preceding sentence and the Reinvestment
Rate shall be interpolated or extrapolated from such yields on a straight-line
basis, rounding in each of such relevant periods to the nearest month. For
purposes of calculating the Reinvestment Rate, the most recent Statistical
Release published prior to the date of determination of the Make-Whole Amount
shall be used.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
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<PAGE>
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 306.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 308.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded United
States government securities adjusted to constant maturities or, if such
statistical release is not published at the time of any determination under this
Indenture, then such other reasonably comparable index which shall be designated
by the Issuer.
"Subsidiary" means a corporation, partnership or other entity a
majority of (i) the voting power of the voting equity securities or (ii) the
outstanding equity interests of which are owned, directly or indirectly, by the
Issuer or by one or more other Subsidiaries of the Issuer. For the purposes of
this definition, "voting equity securities" means equity securities having
voting power for the election of directors, whether at all times or only so long
as no senior class of security has such voting power by reason of any
contingency.
"Total Assets" as of any date means the sum of (i) those
Undepreciated Real Estate Assets and (ii) all other assets of the Issuer and its
Subsidiaries determined in
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<PAGE>
accordance with generally accepted accounting principles (but excluding
intangibles).
"Total Unencumbered Assets" means the sum of (i) those Undepreciated
Real Estate Assets not subject to an Encumbrance for borrowed money and (ii) all
other assets of the Issuer and its Subsidiaries not subject to an Encumbrance
for borrowed money determined in accordance with generally accepted accounting
principles (but excluding intangibles).
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905; provided, however, that in the event the Trust Indenture Act of
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1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the Issuer
and its Subsidiaries on that date, before depreciation and amortization,
determined on a consolidated basis in accordance with generally accepted
accounting principles.
"Unsecured Indebtedness" means Indebtedness which is (i) not
subordinated to any other indebtedness and (ii) not secured by any Encumbrance
upon any of the properties of the Issuer or any Subsidiary.
"U.S. Government Obligation" has the meaning specified in Section
1304.
"Vice President", when used with respect to the general partner of
the Issuer or the Trustee, means any vice
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<PAGE>
president, whether or not designated by a number or a word or words added before
or after the title "vice president".
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Note (or, if applicable, at the most recent redetermination of
interest on such Note) and as set forth in such Note in accordance with
generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Issuer or the Guarantors to the
Trustee to take any action under any provision of this Indenture, the Issuer or
the Guarantors shall furnish to the Trustee such certificates and opinions as
may be required under the Trust Indenture Act. Each such certificate or opinion
shall be given in the form of an Officers' Certificate, if to be given by an
officer of the Issuer or the Guarantors, or an Opinion of Counsel, if to be
given by counsel, and shall comply with the requirements of the Trust Indenture
Act and any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation
as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been
complied with; and
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<PAGE>
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Issuer or the
Guarantors may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
of counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Issuer or of the Guarantors stating that the information with respect to such
factual matters is in the possession of the Issuer or of the Guarantors, unless
such counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
-----------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made or
taken by
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Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Issuer and the
Guarantors. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Issuer, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, the Issuer, or the
Guarantors in reliance thereon, whether or not notation of such action is made
upon such Security.
The Issuer or the Guarantors may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities of any series
entitled to give, make
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<PAGE>
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made or
taken by Holders of Securities of such series, provided that the Issuer may not
--------
set a record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Securities of the relevant series
on such record date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on
--------
or prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing in
this paragraph shall be construed to prevent the Issuer from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Issuer, at its own
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Trustee in writing and to
each Holder of Securities of the relevant series in the manner set forth in
Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
--------
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by
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<PAGE>
Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be canceled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the Issuer's expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Issuer in writing and to each Holder of Securities of the relevant series in the
manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the
party hereto which sets such record date may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
--------
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities of the relevant series in the manner
set forth in Section 106, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date set pursuant
to this Section, the party hereto which set such record date shall be deemed to
have initially designated the 180th day after such record date as the Expiration
Date with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Issuer.
------------------------------------
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<PAGE>
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Issuer or the Guarantors shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department, or
(2) the Issuer or the Guarantors by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
to the Issuer or the Guarantors addressed to it at the address of its
principal office specified in the first paragraph of this instrument or at
any other address previously furnished in writing to the Trustee by the
Issuer or by the Guarantors, as the case may be.
SECTION 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
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<PAGE>
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be
a part of and govern this Indenture, the latter provision shall control. If
any provision of this Indenture modifies or excludes any provision of the
Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to
be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Issuer or the
Guarantors shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
---------------------
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<PAGE>
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders of Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
-------------
THIS INDENTURE, THE SECURITIES AND THE GUARANTEES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities (other than a provision
of any Security which specifically states that such provision shall apply in
lieu of this Section)) payment of interest or principal (and premium, if any)
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Interest Payment Date,
Redemption Date or at the Stated Maturity, provided that no interest shall
--------
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
---------------
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate legends, insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or
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<PAGE>
Depositary therefor or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution thereof. If
the form of Securities of any series is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Issuer and delivered
to the Trustee at or prior to the delivery of the Issuer Order contemplated by
Section 303 for the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods on steel engraved borders or may
be produced in any other manner all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
SECTION 202. Form of Face of Security.
------------------------
[If a Global Security, then insert -- THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY
NOT BE EXCHANGEABLE IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO
TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF
ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[If a Global Security to be held by The Depository Trust Company, then
insert -- UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
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<PAGE>
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
________________________________
No. __________ $________
CUSIP No. ___________
Regency Centers, L.P., a limited partnership duly organized and
existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _________________, or registered
assigns, the principal sum of _______________ Dollars (such amount the
"principal amount" of this Security) [if the Security is a Global Security, then
insert--, or such other principal amount as may be set forth in the records of
the trustee hereinafter referred to in accordance with the Indenture,] on
__________ [if the Security is to bear interest prior to Maturity, insert -- ,
and to pay interest thereon from __________ or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, [insert
frequency of payment] on [insert payment dates] in each year, commencing
__________, at the rate of ___% per annum, until the principal hereof is paid or
made available for payment and (to the extent that the payment of such interest
shall be legally enforceable), provided that any principal and premium, and any
--------
such installment of interest, which is overdue shall bear interest at the rate
of 2% per annum (to the extent that the payment of such interest shall be
legally enforceable), from the dates such amounts are due until they are paid or
made available for payment, and such interest shall be payable on demand. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the [interest record dates] (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose
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<PAGE>
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of 2% per annum (to the extent that the payment of such interest on interest
shall be legally enforceable), from the date of such demand until the amount so
demanded is paid or made available for payment. Interest on any overdue
interest shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Issuer maintained for that purpose in Jacksonville, Florida or in
the Borough of Manhattan, The City of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that at the option of the Issuer
-------- -------
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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<PAGE>
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed.
Dated:
REGENCY CENTERS, L.P.
By: Regency Realty Corporation,
its general partner
By_____________________________
Name:
Title:
SECTION 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities of the
Issuer (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ______ __, 1999 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), among the Issuer, the Guarantors named on the signature pages
thereof and First Union National Bank, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Issuer, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof [if
applicable, insert --, limited in aggregate principal amount to $ ________].
[If applicable, insert -- Securities of this series may be redeemed at
any time at the option of the Issuer, in whole or in part, upon notice of not
more than 60
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<PAGE>
nor less than 30 days prior to _____________ (the "Redemption Date"), at a
redemption price equal to the sum of (i) the principal amount of the Securities
being redeemed plus accrued interest thereon to the Redemption Date and (ii) the
Make-Whole Amount, if any, with respect to such Securities.]
[If applicable, insert -- The Securities of this series do not have
the benefit of any sinking fund obligations.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ________ in any year commencing with the year _____ and ending with the
year _____ for this series at a Redemption Price equal to 100% of the principal
amount, and (2)] at any time [if applicable, insert -- on or after ________,
19__], as a whole or in part, at the election of the Issuer, at the following
Redemption Prices (expressed as percentages of the principal amount): If
redeemed [if applicable, insert -- on or before ________, ___%, and if redeemed]
during the 12-month period beginning ________ of the years indicated,
Redemption Redemption
Year Year
Price Price
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ________ in any
year commencing with the year _____ and ending with the year _____ through
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<PAGE>
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert -- on or after ________], as a whole or in part, at the
election of the Issuer, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ________ of the years indicated,
____________ ______________________ __________________________
Redemption Price For
Redemption Price Redemption Otherwise
Year For Redemption Than Through
Through Operation Operation of the
of the Sinking Fund Sinking Fund
and thereafter at a Redemption Price equal to ______% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Issuer
may not, prior to _____________, redeem any Securities of this series as
contemplated by [if applicable, insert -- Clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the Issuer
(calculated
-29-
<PAGE>
in accordance with generally accepted financial practice) of less than __% per
annum.]
[If applicable, insert -- The sinking fund for this series provides
for the redemption on ____________ in each year beginning with the year ________
and ending with the year ________ of [if applicable, insert -- not less than
$______________ ("mandatory sinking fund") and not more than] $____________
aggregate principal amount of Securities of this series. Securities of this
series acquired or redeemed by the Issuer otherwise than through [if applicable,
insert -- mandatory] sinking fund payments may be credited against subsequent
[if applicable, insert --mandatory] sinking fund payments otherwise required to
be made [if applicable, insert -- , in the inverse order in which they become
due].]
[If the Security is subject to redemption of any kind, insert -- In
the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert paragraph regarding subordination of the
Security.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
[If the Security is not an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
-30-
<PAGE>
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Issuer's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the Guarantors and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Issuer, the
Guarantors, and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Securities at the time Outstanding of each
series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Securities
of each series at the time Outstanding, on behalf of the Holders of all the
Securities of such series, to waive compliance by the Issuer or by the
Guarantors with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the
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<PAGE>
Holders of a majority in principal amount of Securities of this series at the
time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Issuer in Jacksonville, Florida or in the Borough of
Manhattan, The City of New York, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $____ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
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<PAGE>
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Guarantors, the Trustee and any agent of the Issuer,
the Guarantors, or the Trustee may treat the Person in whose name this Security
is registered as the owner hereof for all purposes, whether or not this Security
be overdue, and neither the Issuer, the Guarantors, the Trustee nor any such
agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 204. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
Dated: as Trustee
By ____________________________
Authorized Officer
SECTION 205. Form of Guarantee.
-----------------
GUARANTEE
For value received, Regency Realty Corporation, Regency Office
Partnership, L.P., RRC FL Five, Inc., and RRC Acquisitions, Inc., as Guarantors
(the "Guarantors") hereby unconditionally guarantee to the Holder of the
Security upon which these Guarantees are endorsed, and to the Trustee on
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<PAGE>
behalf of such Holder, the due and punctual payment of the principal of (and
premium, if any) and interest on such Security when and as the same shall become
due and payable, whether at the Stated Maturity, by acceleration, call for
redemption, purchase or otherwise, according to the terms thereof and of the
Indenture referred to therein. In case of the failure of the Issuer punctually
to make any such payment, the Guarantors hereby agree to cause such payment to
be made punctually when and as the same shall become due and payable, whether at
the Stated Maturity or by acceleration, call for redemption, purchase or
otherwise, and as if such payment were made by the Issuer.
The Guarantors hereby agree that their respective obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of such Security or the Indenture, the absence of any action to
enforce the same or any release or amendment or waiver of any term of any other
Guarantee of, or any consent to departure from any requirement of any other
Guarantee of all or of any of the Securities, the election by the Trustee or any
of the Holders in any proceeding under Chapter 11 of the Bankruptcy Code of the
application of Section 1111(b)(2) of the Bankruptcy Code, any borrowing or grant
of a security interest by the Issuer, as debtor-in-possession, under Section 364
of the Bankruptcy Code, the disallowance, under Section 502 of the Bankruptcy
Code, of all or any portion of the claims of the Trustee or any of the Holders
for payment of any of the Securities, any waiver or consent by the Holder of
such Security or by the Trustee or either of them with respect to any provisions
thereof or of the Indenture, the obtaining of any judgment against the Issuer or
any action to enforce the same or any other circumstances which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. The
Guarantors hereby waive the benefits of diligence, presentment, demand of
payment, any requirement that the Trustee or any of the Holders exhaust any
right or take any action against the Issuer or any other Person, filing of
claims with a court in the event of insolvency or bankruptcy of the Issuer, any
right to require a proceeding first against the Issuer, protest or notice with
respect to such Security or the Indebtedness evidenced thereby and all demands
whatsoever, and covenant that these Guarantees will not be discharged except by
complete performance of the obligations contained in such Security and in these
Guarantees. The Guarantors hereby agree that, in the event of a default in
payment of principal (or
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<PAGE>
premium, if any) or interest on such Security, whether at their Stated Maturity,
by acceleration, call for redemption, purchase or otherwise, legal proceedings
may be instituted by the Trustee on behalf of, or by, the Holder of such
Security, subject to the terms and conditions set forth in the Indenture,
directly against the Guarantors to enforce these Guarantees without first
proceeding against the Issuer. The Guarantors agree that if, after the
occurrence and during the continuance of an Event of Default, the Trustee or any
of the Holders are prevented by applicable law from exercising their respective
rights to accelerate the maturity of the Securities, to collect interest on the
Securities, or to enforce or exercise any other right or remedy with respect to
the Securities, the Guarantors agree to pay to the Trustee for the account of
the Holders, upon demand therefor, the amount that would otherwise have been due
and payable had such rights and remedies been permitted to be exercised by the
Trustee or any of the Holders.
No reference herein to the Indenture and no provision of these
Guarantees or of the Indenture shall alter or impair the Guarantees of the
Guarantors, which are absolute and unconditional, of the due and punctual
payment of the principal (and premium, if any) and interest on the Security upon
which these Guarantees are endorsed.
The Guarantors shall be subrogated to all rights of the Holder of this
Security against the Issuer in respect of any amounts paid by the Guarantors on
account of this Security pursuant to the provisions of their respective
Guarantees or the Indenture; provided, however, that the Guarantors shall not be
-------- -------
entitled to enforce or to receive any payments arising out of, or based upon,
such right of subrogation until the principal of (and premium, if any) and
interest on this Security and all other Securities issued under the Indenture
shall have been paid in full.
These Guarantees shall remain in full force and effect and continue to
be effective should any petition be filed by or against the Issuer for
liquidation or reorganization, should the Issuer become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Issuer's assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Securities of
this series is, pursuant to applicable
-35-
<PAGE>
law, rescinded or reduced in amount, or must otherwise be restored or returned
by any obligee on the Securities of this series whether as a "voidable
preference," "fraudulent transfer," or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Securities of this
series shall, to the fullest extent permitted by law, be reinstated and deemed
reduced only by such amount paid and not so rescinded, reduced, restored or
returned.
All terms used in these Guarantees which are defined in the Indenture
referred to in the Security upon which these Guarantees are endorsed shall have
the meanings assigned to them in such Indenture.
These Guarantees shall not be valid or obligatory for any purpose
until the certificate of authentication on the Security upon which these
Guarantees are endorsed shall have been executed by the Trustee under the
Indenture by manual signature.
Reference is made to Article Twelve of the Indenture for further
provisions with respect to this Guarantee.
These Guarantees shall be governed by and construed in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, each of Regency Realty Corporation, Regency Office
Partnership, L.P., RRC FL Five, Inc., and RRC Acquisitions, Inc., as Guarantors,
has caused this Guarantee to be duly executed.
REGENCY REALTY CORPORATION,
REGENCY OFFICE PARTNERSHIP , L.P.,
RRC FL FIVE, INC.,
RRC ACQUISITIONS, INC.,
By_____________________________
Authorized Signatory
ARTICLE THREE
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The Securities
SECTION 301. Title and Terms.
---------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate,
or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1108 and
except for any Securities which, pursuant to Section 303, are deemed never
to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of
the series is payable;
(5) the rate or rates at which any Securities of the series shall
bear interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any such interest payable on any
Interest Payment Date and the basis on which interest shall be
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calculated if other than a 360 day year of twelve 30 day months;
(6) the place or places where the principal of and any premium
and interest on any Securities of the series shall be payable if other than
the office or agency of the Issuer maintained for that purpose in
Jacksonville, Florida or in the Borough of Manhattan, the City of New York;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which any Securities of the series
may be redeemed, in whole or in part, at the option of the Issuer and, if
other than by a Board Resolution, the manner in which any election by the
Issuer to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Issuer to redeem or purchase
any Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which any Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Securities of the series
shall be issuable;
(10) if the amount of principal of or any premium or interest on
any Securities of the series may be determined with reference to an index
or pursuant to a formula, the manner in which such amounts shall be
determined;
(11) if other than the currency of the United States of America,
the currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and
the manner of determining the equivalent thereof in the currency of the
United States of America for any purpose, including for purposes of the
definition of "Outstanding" in Section 101;
(12) if the principal of or any premium or interest on any
Securities of the series is to be
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payable, at the election of the Issuer or the Holder thereof, in one or
more currencies or currency units other than that or those in which such
Securities are stated to be payable, the currency, currencies or currency
units in which the principal of or any premium or interest on such
Securities as to which such election is made shall be payable, the periods
within which and the terms and conditions upon which such election is to be
made and the amount so payable (or the manner in which such amount shall be
determined);
(13) if other than the entire principal amount thereof, the
portion of the principal amount of any Securities of the series which shall
be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(14) if the principal amount payable at the Stated Maturity of
any Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(15) if other than by a Board Resolution, the manner in which any
election by the Issuer to defease such Securities pursuant to Section 1302
or Section 1303 shall be evidenced;
(16) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities,
the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 202 and any
circumstances in addition to or in lieu of those set forth in Clause (b) of
the last paragraph of Section 305 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer
of such Global Security in whole or in part
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may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
(17) any addition to or change in the Events of Default which
applies to any Securities of the series and any change in the right of the
Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 502;
(18) any addition to or change in the covenants set forth in
Article Ten which applies to Securities of the series; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Issuer and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
-------------
The Securities of each series shall be issuable only in registered
form without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
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<PAGE>
The Securities shall be executed on behalf of the Issuer by the
Chairman of the Board, the President or one of the Vice Presidents of its
general partner, under the corporate seal of such general partner reproduced
thereon and the Guarantee to be endorsed on the Securities shall be executed on
behalf of the Guarantors by their Chairmen of the Board, their Presidents or one
of their Vice-Presidents. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Issuer or the Guarantors shall
bind the Issuer or the Guarantors, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Securities of any series executed by the
Issuer having a Guarantee endorsed thereon executed by the Guarantors to the
Trustee for authentication, together with a Issuer Order for the authentication
and delivery of such Securities with the Guarantees of the Guarantors endorsed
thereon; and the Trustee in accordance with such Issuer Order shall authenticate
and deliver such Securities with the Guarantees of the Guarantors endorsed
thereon as in this Indenture provided and not otherwise. If the form or terms
of the Securities of the series have been established by or pursuant to one or
more Board Resolutions as permitted by Sections 201 and 301, in authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as
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permitted by Section 301, that such terms have been established in
conformity with the provisions of this Indenture;
(c) that such Securities have been duly and validly issued in
accordance with the terms of the Indenture, and are entitled to all the
rights and benefits set forth herein; and
(d) that all conditions precedent to the authentication and delivery
of such Securities have been complied with and that such Securities, when
authenticated and delivered by the Trustee and issued by the Issuer in the
manner and subject to any conditions specified in such Opinion of Counsel,
will constitute valid and legally binding obligations of the Issuer,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights and to
general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Issuer Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
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executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Issuer,
and the Issuer shall deliver such Security to the Trustee for cancellation as
provided in Section 310, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Issuer may execute and the Guarantors may execute, and upon Issuer Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise pro produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Issuer will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at any office or agency of the Issuer designated pursuant to Section
1002, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, the Issuer shall execute and the
Guarantors shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of the same
series, of any authorized denominations and of like tenor and aggregate
principal amount. Until so exchanged, the temporary Securities of any series
shall in all respects be entitled to the same
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benefits under this Indenture as definitive Securities of such series and tenor.
SECTION 305. Global Securities.
-----------------
(a) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated by the Issuer for such
Global Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (i) such Depositary (A) has notified the Issuer that it is
unwilling or unable to continue as Depositary for such Global Security or (B)
has ceased to be a clearing agency registered as such under the Exchange Act,
and in either case the Issuer fails to appoint a successor Depositary within 90
days, (ii) the Issuer executes and delivers to the Trustee an Issuer Order
stating that it elects to cause the issuance of the Securities in certificated
form and that all Global Securities shall be exchanged in whole for Securities
that are not Global Securities (in which case such exchange shall be effected by
the Trustee), (iii) there shall have occurred and be continuing an Event of
Default or any Event which after notice or lapse of time or both would be an
Event of Default with respect to the Securities, or (iv) there shall exist such
circumstances, if any, in addition to or in lieu of the foregoing as have been
specified for this purpose as contemplated by Section 301.
(c) If any Global Security is to be exchanged for other Securities or
canceled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Trustee, as Security Registrar, for exchange or cancellation
as provided in this Article Three. If any Global Security is to be exchanged for
other Securities or canceled in part, or if another Security is to be exchanged
in whole or in part for a beneficial interest in any Global Security, then
either (i) such Global Security shall be so surrendered
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for exchange or cancellation as provided in this Article Three or (ii) the
principal amount thereof shall be reduced or increased by an amount equal to the
portion thereof to be so exchanged or canceled, or equal to the principal amount
of such other Security to be so exchanged for a beneficial interest therein, as
the case may be, by means of an appropriate adjustment made on the records of
the Trustee, as Security Registrar, whereupon the Trustee, in accordance with
the Applicable Procedures, shall instruct the Depositary or its authorized
representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of a Global Security, the Trustee shall, as otherwise
provided in this Article Three, authenticate and deliver any Securities issuable
in exchange for such Global Security (or any portion thereof) to or upon the
order of the Issuer, and registered in such names as may be directed by, the
Depositary or its authorized representative. Upon the request of the Trustee in
connection with the occurrence of any of the events specified in the preceding
paragraph, the Issuer shall promptly make available to the Trustee a reasonable
supply of Securities that are not in the form of Global Securities. The Trustee
shall be entitled to rely upon any order, direction or request of the Depositary
or its authorized representative which is given or made pursuant to this Article
Three if such order, direction or request is given or made in accordance with
the Applicable Procedures.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article Three or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Security,
unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under the
Indenture and the Securities, and owners of beneficial interests in a Global
Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security will be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Agent Members.
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SECTION 306. Registration, Registration of Transfer and Exchange.
------------------------------------------ --------
The Issuer shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Issuer designated pursuant to Section 1002 being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Securities and of transfers and exchanges of Securities.
The Trustee is hereby appointed "Security Registrar" for the purpose of
registering Securities and transfers and exchanges of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of a
series at an office or agency of the Issuer designated pursuant to Section 1002
for such purpose, and provided that the other requirements of this Section 306
have been satisfied, the Issuer shall execute and the Guarantors shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of the same series, of any
authorized denominations, of a like tenor and aggregate principal amount and
bearing such restrictive legends as may be required by this Indenture.
At the option of the Holder, and subject to the other provisions of
this Section 306, Securities of any series may be exchanged for other Securities
of the same series, of any authorized denominations, of a like tenor and
aggregate principal amount and bearing such restrictive legends as may be
required by this Indenture, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Issuer shall execute and the Guarantors shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuer and the Guarantors,
evidencing the same debt, and entitled to the same benefits under this
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Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Issuer or the Security Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to the Holder for any registration of
transfer or exchange of Securities, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1108 not involving any transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Issuer shall not be required (i) to issue,
register the transfer of or exchange any Securities of that series (or of that
series and specified tenor, as the case may be) during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 1104
and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
SECTION 307. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Issuer
shall execute and the Guarantors shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Issuer, the Guarantors and the
Trustee (i) evidence to their satisfaction of the destruction, loss or theft
of any Security and (ii) such security or indemnity as may be required by them
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to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Issuer or the Trustee that such Security has been
acquired by a bona fide purchaser, the Issuer shall execute and the Guarantors
shall execute and upon its request the Trustee shall authenticate and deliver,
in lieu of any such destroyed, lost or stolen Security, a new Security of the
same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Issuer or the Guarantors in
its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Issuer
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Issuer, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 308. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the
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close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Issuer, at its election in each case,
as provided in Clause (1) or (2) below:
(1) The Issuer may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Issuer shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of
such series and the date of the proposed payment, and at the
same time the Issuer shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the
Issuer of such Special Record Date and, in the name and at
the expense of the Issuer, shall cause notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage
prepaid, to each Holder at his
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address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Issuer may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange,
if, after notice given by the Issuer to the Trustee of the
proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 309. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer,
the Issuer, the Guarantors, the Trustee and any agent of the Issuer, the
Guarantors, or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 308) interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Issuer, the Guarantors, the Trustee nor any agent of
the Issuer, the Guarantors, or the Trustee shall be affected by notice to the
contrary.
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SECTION 310. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Issuer or the Guarantors may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Issuer or the Guarantors may
have acquired in any manner whatsoever, and may deliver to the Trustee (or to
any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Issuer has not issued and sold, and
all Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be disposed of as
directed by a Issuer Order.
SECTION 311. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
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(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced
or paid as provided in Section 307 and (ii) Securities
for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Issuer
and thereafter repaid to the Issuer or discharged from
such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of
the Issuer,
and the Issuer or the Guarantors, in the case of (i), (ii)
or (iii) above, has deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose an
amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if
any) and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
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(2) the Issuer or the Guarantors has paid or
caused to be paid all other sums payable hereunder by
the Issuer or the Guarantors; and
(3) the Issuer has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Issuer or the Guarantors to the
Trustee under Section 607, the obligations of the Trustee to any Authenticating
Agent under Section 614 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of Clause (1) of this Section, the obligations of the
Trustee under Sections 307 and 402 and the last paragraph of Section 1003 shall
survive.
SECTION 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer or the Guarantors acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
-----------------
Except as otherwise provided as contemplated by Section 301 with
respect of any series of Securities, "Event of Default", wherever used herein
with respect to Securities of any series, means any one of the following events
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(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its
Maturity; or
(2) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(3) default in the performance, or breach, of Section
801; or
(4) default in the deposit of any sinking fund
payment, when and as due by the terms of a Security of that
series; or
(5) default in the performance, or breach, of any covenant or
warranty of the Issuer in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of a series of Securities other
than that series), and continuance of such default or breach for a period
of 60 days after there has been given, by registered or certified mail, to
the Issuer by the Trustee or to the Issuer and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(6) a default or defaults under any bond(s), debenture(s), note(s) or
other evidence(s) of Indebtedness by the Issuer or
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any Guarantor or under any mortgage(s), indenture(s) or
instrument(s) under which there may be issued or by which
there may be secured or evidenced any Indebtedness of such
type by the Issuer or any such Guarantor with a principal
amount then outstanding, individually or in the aggregate,
in excess of $10 million, whether such Indebtedness now
exists or shall hereafter be created, which default or
defaults shall constitute a failure to pay any portion of
the principal of such Indebtedness when due and payable
after the expiration of any applicable grace period with
respect thereto or shall have resulted in such Indebtedness
becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable; or
(7) a final judgment or final judgments for the payment
of money are entered against the Issuer or any Guarantor in
an aggregate amount in excess of $10 million by a court or
courts of competent jurisdiction, which judgments remain
undischarged or unbonded for a period (during which
execution shall not be effectively stayed) of 60 days after
the right to appeal all such judgments has expired; or
(8) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of
the Issuer or any Guarantor in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Issuer or any such Guarantor a
bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Issuer or any such
Guarantor under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the
Issuer or any such Guarantor or of any
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substantial part of the property of the Issuer or any such
Guarantor, or ordering the winding up or liquidation of the
affairs of the Issuer or any such Guarantor, and the
continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(9) the commencement by the Issuer or any Guarantor of
a voluntary case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by the
Issuer or any such Guarantor to the entry of a decree or
order for relief in respect of the Issuer or any Guarantor
in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy
or insolvency case or proceeding against the Issuer or any
Guarantor, or the filing by the Issuer or any such Guarantor
of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State law, or the
consent by the Issuer or any such Guarantor to the filing of
such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Issuer or any
Guarantor or of any substantial part of the property of the
Issuer or any Guarantor, or the making by the Issuer or any
Guarantor of an assignment for the benefit of creditors, or
the admission by the Issuer or any such Guarantor in writing
of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Issuer or any
such Subsidiary in furtherance of any such action; or
(10) any other Event of Default provided with respect
to Securities of that
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series pursuant to Section 301 of this Indenture.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default (other than an Event of Default specified in
Section 501(8) or (9)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount of all the Securities
of that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Issuer (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) and any accrued
interest shall become immediately due and payable. If an Event of Default
specified in Section 501(8) or (9) with respect to Securities of any series at
the time Outstanding occurs, the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) shall automatically, and without any declaration
or other Act on the part of the Trustee or any Holder, become immediately due
and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Issuer and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Issuer or the Guarantors has paid or deposited
with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of
that series,
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(B) the principal of (and premium, if any, on)
any Securities of that series which have become due
otherwise than by such declaration of acceleration and,
to the extent that payment of such interest is lawful,
any interest thereon at the rate or rates provided by
the Securities of that Series,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate
or rates provided by the Securities of that Series, and
(D) all sums paid or advanced by the Trustee hereunder
in respect of that series of Securities and the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel in
respect of that series of Securities;
and
(2) all Events of Default with respect to Securities
of that series, other than the non-payment of the principal
of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Issuer covenants that if
(1) default is made in the payment of any
interest on any Security when such interest becomes due and
payable and such default continues for a period of 30 days,
or
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(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity
thereof,
the Issuer and the Guarantors will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of Securities of that series, the whole amount then
due and payable on Securities of that series for principal (and premium, if any)
and interest, and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on any
overdue interest, at the rate or rates provided by the Securities of that
series, and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Issuer or the Guarantors fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Issuer, the Guarantors or any other obligor upon
the Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Issuer, the Guarantors or any
other obligor upon the Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Issuer or the
Guarantors (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in such
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proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
--------
however, that the Trustee may, on behalf of the Holders, vote for the election
- -------
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
------------------------------
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Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities of the applicable
series and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid
for principal of (and premium, if any) and interest on the
Securities of the series in respect of which or for the benefit
of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due
and payable on such Securities for principal (and premium, if
any) and interest, respectively.
SECTION 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against
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the costs, expenses and liabilities to be incurred in compliance
with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
----------------------------------------------------------------
Interest.
--------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 308) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Issuer,
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the Guarantors, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 307, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
--------
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(1) such direction shall not be in conflict with any rule
of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any)
or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant (other than the
Trustee) in such suit to file an undertaking to pay the costs of such suit, and
may assess costs against any such party litigant, in the manner and to the
extent provided in the Trust Indenture Act; provided, that neither this Section
--------
nor the Trust Indenture Act shall be deemed to authorize any court to require
such an undertaking or to make such an assessment in any suit instituted by the
Issuer.
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SECTION 515. Waiver of Stay or Extension Laws.
--------------------------------
The Issuer and the Guarantors covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Issuer and
the Guarantors (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as provided in
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
------------------
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character
- -------- -------
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specified in Section 501(5) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party
or parties;
(b) any request or direction of the Issuer mentioned herein
shall be sufficiently evidenced by a Issuer Request or Issuer
Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
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(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records
and premises of the Issuer or the Guarantors, personally or by
agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Issuer or the Guarantors, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. Neither
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the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Issuer of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Issuer or the Guarantors, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Issuer with the
same rights it would have if it were not the Trustee, any Authenticating Agent
any Paying Agent, any Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Issuer or the Guarantors.
SECTION 607. Compensation and Reimbursement.
------------------------------
The Issuer agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or
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advance as may be attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or reasonable expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, including the reasonable costs and expenses of
defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties
hereunder.
SECTION 608. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series or a trustee under the Indenture dated July
20, 1998 between the Issuer, the guarantors named therein and the Trustee.
SECTION 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If such Person publishes reports
of condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section and
to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the
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Securities of any series shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Issuer. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Issuer.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608
after written request therefor by the Issuer or by any Holder who
has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Issuer or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
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officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Issuer or the Guarantors by a Board Resolution
may remove the Trustee with respect to all Securities, or (ii) subject to
Section 514, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Issuer, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Issuer and the Guarantors
and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee
appointed by the Issuer. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Issuer or the Holders and
accepted appointment in the manner hereinafter provided, any Holder who has been
a bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
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(f) The Issuer shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
Holders of Securities of such series in the manner provided in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
--------------------------------------
In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Issuer and the Guarantors and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Issuer, the Guarantors or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder. Upon request of any such successor Trustee, the Issuer, or the
Guarantors shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Issuer, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed
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necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Issuer or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Issuer and the
Guarantors shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
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corporation succeeding to all or substantially all of the bond administrative
portion of the corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Issuer or the
-------------------------------------------------------
Guarantors.
----------
If and when the Trustee shall be or become a creditor of the Issuer or
the Guarantors (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Issuer or the Guarantors (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Issuer and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
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or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Issuer. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Issuer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Issuer and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
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The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
As Trustee
By ___________________________,
As Authenticating Agent
By ___________________________,
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Issuer
SECTION 701. Issuer to Furnish Trustee Names and Addresses of Holders.
--------------------------------------------------------
The Issuer and the Guarantors will furnish or cause to be furnished to
the Trustee
(a) semi-annually, not later than January 1 and
July 1 in each year, a list, in such form as the
Trustee may reasonably require, of the names and
addresses of the Holders of Securities of each series
as of
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the preceding June 15 or December 15, as the case may
be, and
(b) at such other times as the Trustee may request
in writing, within 30 days after the receipt by the
Issuer or the Guarantors of any such request, a list of
similar form and content as of a date not more than 15
days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
- ---------
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Issuer, the Guarantors and the Trustee that neither the Issuer,
the Guarantors nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to the names and
addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture
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Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Issuer. The Issuer will
notify the Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Issuer.
-----------------
The Issuer and the Guarantors shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Issuer May Consolidate, Etc. and Purchases of Assets Only on
------------------------------------------------------------
Certain Terms.
--------------
The Issuer (a) shall not consolidate with or merge into any other
Person; (b) shall not permit any other Person to consolidate with or merge into
the Issuer; (c) shall not, directly or indirectly, transfer, convey, sell, lease
or otherwise dispose of all or substantially all of its properties and assets as
an entirety; and (d) shall not, and shall not permit any Subsidiary of the
Issuer to, (i) acquire Capital Stock or other ownership interests of any other
Person such that such Person becomes a Subsidiary of the Issuer or (ii) directly
or indirectly, purchase, lease or otherwise acquire all or substantially all of
the property and assets of any Person as an entirety or any existing business
(whether existing as a separate entity, subsidiary, division, unit or otherwise)
of any Person, unless in any such transaction:
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(1) immediately before and after giving effect to
such transaction and treating any Indebtedness Incurred
by the Issuer or a Subsidiary of the Issuer as a result
of such transaction as having been Incurred by the
Issuer or such Subsidiary at the time of such
transaction, no Event of Default with respect to the
Securities of any series, and no event which, after
notice or lapse of time, or both, would become an Event
of Default with respect to the Securities of any
series, shall have happened and be continuing;
(2) in the case the Issuer shall consolidate
with or merge into another Person or shall directly or
indirectly transfer, convey, sell, lease or otherwise
dispose of all or substantially all of its properties
and assets as an entirety, the Person formed by such
consolidation or into which the Issuer is merged or the
Person which acquires by transfer, conveyance, sale,
lease or other disposition all or substantially all of
the properties and assets of the Issuer as an entirety
(for purposes of this Article Eight, a "Successor
Issuer") shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws
of the United States of America, any State thereof or
the District of Columbia and shall expressly assume by
an indenture supplemental hereto executed and delivered
to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of (and
premium, if any) and interest on all the Securities of
each series and the performance of every covenant of
this Indenture on the part of the Issuer to be
performed or observed;
(3) immediately after giving effect to such
transaction, the Consolidated Net Worth of the Issuer
or, if applicable, the Successor Issuer shall be equal
to or greater than the Consolidated Net Worth of the
Issuer immediately prior to such transaction;
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(provided that this clause (3) shall not apply to a
transaction involving the consolidation or merger of a
direct or indirect subsidiary of Regency with or into
the Issuer and provided further that for purposes of
this clause (3), a series of related transactions shall
be treated as a single transaction);
(4) other than in connection with an acquisition
of an individual property that would not constitute the
acquisition of a "significant subsidiary", if the tests
set forth in Rule 1-01(w) of Regulation S-X were
applied with respect to such acquisition, the Issuer
has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer, lease or
acquisition and, if a supplemental indenture is
required in connection with such transaction, such
supplemental indenture, complies with this Article and
that all conditions precedent herein provided for
relating to such transaction have been complied with,
and, with respect to such Officers' Certificate,
setting forth the manner of determination of the
Consolidated Net Worth of the Issuer or, if applicable,
of the Successor Issuer as required pursuant to the
foregoing.
SECTION 802. Successor Substituted.
---------------------
Upon any consolidation of the Issuer with, or merger of the Issuer
into, any other Person or any transfer, conveyance, sale, lease or other
disposition of all or substantially all of the properties and assets of the
Issuer as an entirety in accordance with Section 801, the Successor Issuer shall
succeed to, and be substituted for, and may exercise every right and power of,
the Issuer under this Indenture with the same effect as if such successor Person
had been named as the Issuer herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities of each series.
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ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Issuer and the Guarantors,
when authorized by a Board Resolution, the Guarantors and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Issuer and the
Guarantors and the assumption by any such successor of the covenants of the
Issuer or the Guarantors herein and in the Securities; or
(2) to add to the covenants of the Issuer for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series), or to surrender any right or power herein conferred upon the
Issuer; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) anything in this Indenture (other than Section 107) to the
contrary notwithstanding, to add
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to, change or eliminate any of the provisions of this Indenture in respect
of one or more series of Securities, provided that any such addition,
--------
change or elimination (A) shall neither (i) apply to any Security of any
series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (ii) modify the rights of the
Holder of any such Security with respect to such provision or (B) shall
become effective only when there is no such Security Outstanding; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 611; or
(8) to secure the Securities; or
(9) to comply with any requirements of the Commission in order to
effect and maintain the qualification of this Indenture under the Trust
Indenture Act; or
(10) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
the provisions of this Indenture, provided such action pursuant to this
--------
Clause (10) shall not adversely affect the interests of the Holders in any
material respect and Trustee may rely on an Opinion of Counsel that such
action will not adversely affect the interests of the Holders in any
material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
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With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Issuer, the
Guarantors and the Trustee, the Issuer, when authorized by a Board Resolution,
the Guarantors and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
-------- -------
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount
Security or any other Security which would be due and payable
upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change the place of payment where, or
the coin or currency in which, any Security or any premium or
interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section
513 or Section 1012, except to increase any such percentage or to
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provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that
-------- -------
this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section and Section 1012, or the
deletion of this proviso, in accordance with the requirements of
Sections 611 and 901(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in
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accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities of each series to
which the supplemental indenture relates and theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Issuer and the
Guarantors shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Issuer, to any such
supplemental indenture may be prepared and executed by the Issuer and the
Guarantors and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Issuer covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
-------------------------------
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The Issuer and the Guarantors will maintain for any series of
Securities in Jacksonville, Florida or in the Borough of Manhattan, The City of
New York, an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Issuer in respect of the Securities of that series and this Indenture
may be served. The Issuer and the Guarantors will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Issuer or the Guarantors shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Issuer and the
Guarantors hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Issuer may also from time to time designate one or more other
offices or agencies (in or outside Jacksonville, Florida or the Borough of
Manhattan, The City of New York) where the Securities of one or more series may
be presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or
-------- -------
rescission shall in any manner relieve the Issuer of its obligation to maintain
an office or agency in Jacksonville, Florida or in the Borough of Manhattan, The
City of New York, for such purposes. The Issuer will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 1003. Money for Securities Payments to be Held in Trust.
-------------------------------------------------
If the Issuer or the Guarantors shall at any time act as its own
Paying Agent with respect to any series of Securities, it will, on or before
each due date of the principal of (and premium, if any) or interest on any of
the Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal (and premium,
if any) or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will
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promptly notify the Trustee of its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Issuer will promptly notify the Trustee of its action
or failure so to act.
The Issuer will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Issuer (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuer or the Guarantors or such Paying Agent, such sums to be held
by the Trustee upon the same trusts as those upon which such sums were held by
the Issuer or the Guarantors or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuer or the Guarantors, in trust for the payment of the principal of
(and premium, if any) or interest on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Issuer on Issuer Request, or (if
then held by the
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Issuer or the Guarantors) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only to
the Issuer and the Guarantors for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Issuer and the Guarantors as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
- -------- -------
to make any such repayment, may at the expense of the Issuer and the Guarantors
cause to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in The
City of New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Issuer or the Guarantors, as the case may be.
SECTION 1004. Existence.
---------
Subject to Article Eight, the Issuer will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
-------- -------
Issuer shall not be required to preserve any such right or franchise if the
Board of Directors in good faith shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Issuer and that the
loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
-------------------------
The Issuer will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary of the Issuer to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Issuer may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
--------
however, that nothing in this Section shall prevent the Issuer from
- -------
discontinuing the operation or
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maintenance of any of such properties if such discontinuance is, as determined
by the Board of Directors in good faith, desirable in the conduct of its
business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
---------------------------------
The Issuer and the Guarantors will pay or discharge or cause to be
paid or discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the Issuer, any
Guarantor or any of their respective Subsidiaries, and (2) all lawful claims for
labor, materials and supplies which, if unpaid, might by law become a lien upon
the property of the Issuer, any Guarantor or any of their respective
Subsidiaries; provided, however, that the Issuer and any Guarantor shall not be
-------- -------
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1007. Maintenance of Insurance.
------------------------
The Issuer and the Guarantors shall, and shall cause each of their
Subsidiaries to, keep at all times all of their properties which are of an
insurable nature insured against loss or damage with insurers believed by the
Issuer to be responsible to the extent that property of similar character is
usually so insured by corporations similarly situated and owning like properties
in commercially reasonable amounts and types. The Issuer shall, and shall cause
its Subsidiaries to, use the proceeds from any such insurance policy to repair,
replace or otherwise restore the property to which such proceeds relate.
SECTION 1008. Limitations on Incurrence of Indebtedness.
-----------------------------------------
Neither the Issuer nor any Subsidiary will incur any Indebtedness if,
immediately after giving effect to the incurrence of such additional
Indebtedness and the application of the proceeds thereof, the aggregate
principal amount of all outstanding Indebtedness of the Issuer and its
Subsidiaries on a consolidated basis determined in
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accordance with generally accepted accounting principles is greater than 60% of
the sum of (without duplication) (i) the Total Assets of the Issuer and its
Subsidiaries as of the end of the calendar quarter covered in the Issuer's
Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be,
most recently filed with the Trustee (or such reports of Regency if filed by the
Issuer with the Trustee in lieu of filing its own reports) prior to the
incurrence of the additional Indebtedness and (ii) the purchase price of any
real estate assets or mortgages receivable acquired and the amount of any
securities offering proceeds received (to the extent that the proceeds were not
used to acquire real estate assets or mortgages receivable or used to reduce
Indebtedness) by the Issuer or any Subsidiary since the end of the calendar
quarter, including those proceeds obtained in connection with the incurrence of
the additional Indebtedness.
In addition to the foregoing limitation on the incurrence of
Indebtedness, neither the Issuer nor any Subsidiary will incur any Indebtedness
secured by any Encumbrance upon any of the property of the Issuer or any
Subsidiary if, immediately after giving effect to the incurrence of the
additional Indebtedness and the application of the proceeds thereof, the
aggregate principal amount of all outstanding Indebtedness of the Issuer and its
Subsidiaries on a consolidated basis which is secured by any Encumbrance on
property of the Issuer or any Subsidiary is greater than 40% of the sum of
(without duplication) (i) the Total Assets of the Issuer and its Subsidiaries as
of the end of the calendar quarter covered in the Issuer's Annual Report on Form
10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed
with the Trustee (or such reports of Regency if filed by the Issuer with the
Trustee in lieu of filing its own reports) prior to the incurrence of the
additional Indebtedness and (ii) the purchase price of any real estate assets or
mortgages receivable acquired and the amount of any securities offering proceeds
received (to the extent that the proceeds were not used to acquire real estate
assets or mortgages receivable or used to reduce Indebtedness) by the Issuer or
any Subsidiary since the end of the calendar quarter, including those proceeds
obtained in connection with the incurrence of the additional Indebtedness.
The Issuer and its Subsidiaries must at all times own Total
Unencumbered Assets equal to at least 150% of the
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aggregate outstanding principal amount of the Unsecured Indebtedness of the
Issuer and its Subsidiaries on a consolidated basis.
In addition to the foregoing limitations on the incurrence of
Indebtedness, neither the Issuer nor any Subsidiary will incur any Indebtedness
if the ratio of Consolidated Income Available for Debt Service to the Annual
Service Charge for the four consecutive fiscal quarters most recently ended
prior to the date on which such additional Indebtedness is to be incurred shall
have been less than 1.5 to 1, on a pro forma basis, after giving effect thereto
and to the application of the proceeds therefrom and calculated on the
assumption that (i) such indebtedness and any other Indebtedness incurred by the
Issuer or its Subsidiaries since the first day of such four-quarter period and
the application of the proceeds therefrom, including Indebtedness to refinance
other Indebtedness, had occurred at the beginning of the period, (ii) the
repayment or retirement of any other Indebtedness by the Issuer and its
Subsidiaries since the first day of such four-quarter period had been incurred,
repaid or retired at the beginning of that period (except that, in making such
computation, the amount of Indebtedness under any revolving credit facility
shall be computed based upon the average daily balance of the Indebtedness
during such period), (iii) in the case of Acquired Indebtedness or Indebtedness
incurred in connection with any acquisition since the first day of the four-
quarter period, the related acquisition had occurred as of the first day of the
period with the appropriate adjustments with respect to the acquisition being
included in the pro forma calculation, and (iv) in the case of any acquisition
or disposition by the Issuer or any Subsidiary of any asset or group of assets
since the first day of such four-quarter period, including, without limitation,
by merger, stock purchase or sale, or asset purchase or sale, such acquisition
or disposition or any related repayment of Indebtedness had occurred as of the
first day of such period with appropriate adjustments with respect to the
acquisition or disposition being included in such pro forma calculation.
SECTION 1009. [Intentionally Omitted]
SECTION 1010. Provision of Financial Information.
----------------------------------
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Whether or not the Issuer is required to be subject to Section 13(a)
or 15(d) of the Exchange Act or any successor provision thereto, the Issuer
shall file with the Commission the annual reports, quarterly reports and other
documents which the Issuer would have been required to file with the Commission
pursuant to such Section 13(a) or 15(d) or any successor provision thereto if
the Issuer were so required, such documents to be filed with the Commission on
or prior to the respective dates (the "Required Filing Dates") by which the
Issuer would have been required so to file such documents if the Issuer were so
required.
If filing such documents by the Issuer with the Commission is not
permitted under the Exchange Act, the Issuer shall (a) within 15 days of each
Required Filing Date file with the Trustee copies of the annual reports,
quarterly reports and other documents which the Issuer would have been required
to file with the Commission pursuant to Section 13(a) or 15(d) of the Exchange
Act or any successor provisions thereto if the Issuer were required to be
subject to such Sections and (b) promptly upon written request supply copies of
such documents to any Holder or prospective Holder.
SECTION 1011. Statement by Officers as to Default; Compliance Certificates.
------------------------------------------------------------
(a) The Issuer will deliver to the Trustee, within 90 days after the
end of each fiscal year, and within 60 days after the end of each fiscal quarter
(other than the fourth fiscal quarter), of the Issuer ending after the date
hereof, an Officers' Certificate, stating whether or not to the best knowledge
of the signers thereof the Issuer is in default in the performance and
observance of any of the terms, provisions and conditions of Section 801 or
Sections 1004 to 1010, inclusive, and if the Issuer shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge.
(b) The Issuer shall deliver to the Trustee, as soon as possible and
in any event within 10 days after the Issuer becomes aware or should reasonably
become aware of the occurrence of an Event of Default with respect to any series
of Securities or an event which, with notice or the lapse of time or both, would
constitute an Event of Default with respect to any series of Securities, an
Officers'
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Certificate setting forth the details of such Event of Default or default, and
the action which the Issuer proposes to take with respect thereto.
SECTION 1012. Waiver of Certain Covenants.
---------------------------
The Issuer may omit in any particular instance to comply with any
covenant or condition set forth in Section 801 and Sections 1004 to 1010, if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities of each series shall, by Act of
such Holders on behalf of the Holders of such series, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Issuer and the duties of the Trustee in
respect of any such covenant or condition shall remain in full force and effect.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption.
-------------------
The Securities of any series may be redeemed (i) at the election of
the Issuer, as a whole or from time to time in part, at any time at a redemption
price equal to the sum of (a) the principal amount of the Securities being
redeemed plus accrued interest thereon to the Redemption Date and (b) the Make-
Whole Amount, if any, with respect to such Securities (the "Redemption Price")
or (ii) in another manner specified as contemplated by Section 301 for such
securities.
SECTION 1102. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for such Securities) in
accordance with this Article.
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<PAGE>
SECTION 1103. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Issuer to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution or in another manner
specified as contemplated by Section 301 for such Securities. In case of any
redemption at the election of the Issuer of less than all the Securities of any
series (including any such redemption affecting only a single Security), the
Issuer shall, at least 60 days prior to the Redemption Date fixed by the Issuer
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Issuer shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1104. Selection by Trustee of Securities to BeRedeemed.
------------------------------------------------
If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the Securities of
such series and of a specified tenor are to be redeemed (unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and specified tenor not
previously
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called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Issuer and each Security
Registrar in writing of the Securities selected for redemption as aforesaid and,
in the case of any Securities selected for partial redemption as aforesaid, the
principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1105. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than
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all the Outstanding Securities of any series consisting of a single
Security are to be redeemed, the principal amount of the particular
Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Issuer shall be given by the Issuer or, at the Issuer's request, by the
Trustee in the name and at the expense of the Issuer and shall be irrevocable.
SECTION 1106. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Issuer shall deposit with the
Trustee or with a Paying Agent (or, if the Issuer is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1107. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Issuer shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Issuer at the Redemption Price, together with accrued interest to
the Redemption Date;
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provided, however, that, unless otherwise specified as contemplated by Section
- -------- -------
301, installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
308.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate provided by the
Security.
SECTION 1108. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Issuer designated for that purpose pursuant to
Section 1002 (with, if the Issuer or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Issuer and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Issuer and the Guarantors shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE TWELVE
Guarantees
SECTION 1201. Guarantees.
----------
The Guarantors, jointly and severally, as primary obligors and not
merely as sureties, hereby irrevocably and unconditionally guarantee to each
Holder and to the Trustee and its successors and assigns (a) the full and
punctual payment when due, whether at Stated Maturity of any series, by
acceleration or otherwise, of all obligations of the Issuer now or hereafter
existing under this Indenture whether for principal of or interest on the
Securities of each series (and premium, if any) and all other monetary
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obligations of the Issuer under this Indenture and the Securities of each series
in respect of the Securities of each series and (b) the full and punctual
performance within the applicable grace periods of all other obligations of the
Issuer under this Indenture and the Securities of each series (all such
obligations guaranteed hereby by the Guarantors being the "Guaranteed
Obligations"). The guarantees of the Guarantors under this Article 12 is herein
referred to as this "Guarantees".
The Guarantors agree to pay any and all fees and expenses (including
reasonable attorney's fees and expenses) incurred by the Trustee or the Holders
in enforcing any rights under this Article 12 with respect to the Guarantors.
Without limiting the generality of the foregoing, these Guarantees
guarantee, to the extent provided herein, the payment of all amounts which
constitute part of the Guaranteed Obligations and would be owed by the Issuer
under this Indenture or the Securities of each series but for the fact that they
are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Issuer.
SECTION 1202. Guarantees Absolute.
-------------------
Each Guaranty is irrevocable, absolute and unconditional. The
Guarantors, jointly and severally, guarantee that the Guaranteed Obligations
will be performed strictly in accordance with the terms of this Indenture,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Trustee or the
Holders with respect thereto. The obligations of the Guarantors under these
Guarantees are independent of the Guaranteed Obligations, and a separate action
or actions may be brought and prosecuted against such Guarantor to enforce these
Guarantees, irrespective of whether any action is brought against the Issuer or
any other guarantor or whether the Issuer or any other guarantor is joined in
any such action or actions. The liability of the Guarantors under these
Guarantees shall be absolute and unconditional irrespective of:
(a) any lack of validity, regularity or enforceability of this
Indenture or the Securities of any
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series with respect to the Issuer or any agreement or instrument relating
thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of any of the Guaranteed Obligations, or any other amendment or
waiver of or any consent to departure from this Indenture;
(c) the failure to give notice to the Guarantors of the occurrence of
a default under the provisions of this Indenture or the Securities of any
series;
(d) any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(e) any failure, omission, delay by or inability on the part of the
Trustee or the Holders to assert or exercise any right, power or remedy
conferred on the Trustee or the Holders in this Indenture or the Securities
of any series;
(f) any change in the corporate or other structure, or termination,
dissolution, consolidation or merger of the Issuer or any Guarantor with or
into any other entity, the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all the
assets of the Issuer or any Guarantor, the marshaling of the assets and
liabilities of the Issuer or any Guarantor, the receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition with creditors, or readjustments of, or other or
other similar proceedings affecting the Issuer or any Guarantor, or any of
the assets of any of them;
(g) the election by the Trustee or any of the Holders in any
proceeding under Chapter 11 of Title 11 of the United States Code (the
"Bankruptcy Code") of the application of Section 1111(b)(2) of the
Bankruptcy Code, any borrowing or grant of a security interest by the
Issuer, as debtor-in-possession, under Section 364 of the Bankruptcy Code,
the disallowance, under Section 502 of the Bankruptcy Code, of all or any
portion of the claims of the Trustee or any of the Holders for payment of
any of the Securities of any series, any
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waiver or consent by the Holder of such Security or by the Trustee with
respect to any provisions thereof or of this Indenture;
(h) the assignment of any right, title or interest of the Trustee
or any Holder in this Indenture or the Securities of any series to any
other Person; or
(i) any other event or circumstance (including any statute of
limitations), whether foreseen or unforeseen and whether similar or
dissimilar to any of the foregoing, that might otherwise constitute a
defense available to, or a discharge of, the Issuer or any Guarantor, other
than performance in full of the Guaranteed Obligations for the payment of
money; it being the intent of any Guarantor that its obligations hereunder
shall not be discharged except by payment of all amounts owing pursuant to
this Indenture or the Securities of any series.
These Guarantees shall continue to be effective or be reinstated, as
the case may be, if at any time any payment or performance with respect to any
of the Guaranteed Obligations is rescinded or must otherwise be returned by the
Trustee, any Holder or any other Person upon the insolvency, bankruptcy or
reorganization of the Issuer or otherwise, all as though such payment or
performance had not been made or occurred. The obligations of the Guarantors
under these Guarantees shall not be subject to reduction, termination or other
impairment by any set-off, recoupment, counterclaim or defense or for any other
reason.
SECTION 1203. Waivers.
-------
Each Guarantor hereby irrevocably waives, to the extent permitted by
applicable law:
(a) promptness, demand for payment, diligence, presentment, notice of
acceptance and any other notice with respect to any of the Guaranteed
Obligations and its Guaranty;
(b) any requirement that the Trustee, any Holder or any other Person
protect, secure, perfect or insure any Encumbrance or any property subject
thereto or exhaust any right or take any action against the Issuer
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or any other Person, or obtain any relief pursuant to this Indenture or
pursue any other available remedy;
(c) all right to trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Indenture or the Securities
of any series;
(d) filing of claims with a court in the event of insolvency or
bankruptcy of the Issuer, any right to require a proceeding first against
the Issuer, protest or notice with respect to such Security or the Indeb
tedness evidenced thereby and all demands whatsoever;
(e) any defense arising by reason of any claim or defense based upon
an election of remedies by the Trustee or any Holder which in any manner
impairs, reduces, releases or otherwise adversely affects its subrogation,
contribution or reimbursement rights or other rights to proceed against the
Issuer or any other Person; and
(f) any duty on the part of the Trustee or any Holder to disclose to
such Guarantor any matter, fact or thing relating to the business,
operation or condition of the Issuer and its assets now known or hereafter
known by the Trustee or such Holder.
SECTION 1204. Waiver of Subrogation and Contribution.
--------------------------------------
Until this Indenture has been discharged, each Guarantor hereby
irrevocably waives any claim or other right which it may now or hereafter
acquire against the Issuer or any guarantor that arise from the existence,
payment, performance or enforcement of such Guarantor's obligations under its
Guaranty, including any right of subrogation, reimbursement, exoneration,
contribution, indemnification, any right to participate in any claim or remedy
of the Trustee or any Holder against the Issuer or any guarantor which the
Trustee or any Holder now has or hereafter acquires, whether or not such claim,
remedy or right arises in equity, or under contract, statute or common law,
including the right to take or receive from the Issuer, directly or indirectly,
in cash or other property or by setoff or in any other manner, payment or
security on account of such claim or other rights. If any amount shall be paid
to a Guarantor in violation of the preceding
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sentence and the Guaranteed Obligations shall not have been paid in full, such
amount shall be deemed to have been paid to such Guarantor for the benefit of,
and held in trust for the benefit of, the Trustee, and the Holders, and shall
forthwith be paid to the Trustee for the benefit of the Holders to be credited
and applied to the Guaranteed Obligations, whether matured or unmatured, in
accordance with the terms of this Indenture. Each Guarantor acknowledges that it
will receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waivers set forth in this Section
1204 are knowingly made in contemplation of such benefits.
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between itself, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 5 hereof for the
purposes of its Guaranty, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article 5 hereof, such obligations (whether or
not due and payable) shall forthwith become due and payable by such Guarantor
for the purpose of its Guaranty.
SECTION 1205. Certain Agreements.
------------------
Each Guarantor covenants and agrees that, as a condition to the
acceptability of its Guaranty to the Trustee and the Holders, it will:
(a) comply in all material respects with all applicable laws, rules,
regulations and orders, such compliance to include paying when due all
taxes, assessments and governmental charges imposed upon it or upon its
property except to the extent contested in good faith; and
(b) preserve and maintain its existence, rights (contractual and
statutory) and franchises; provided,
--------
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<PAGE>
however, that such Guarantor shall not be required to preserve any right or
-------
franchise if the board of directors or general partner of such Guarantor
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of such Guarantor and the loss thereof is not
disadvantageous in any material respect to the Guarantor or such Holders.
(c) not consolidate with or merge with or into (whether or not such
Guarantor is the surviving Person) another Person whether or not affiliated
with such Guarantor unless:
(i) the Person formed by or surviving any such consolidation or
merger is organized under the laws of the United States of America or
any state thereof or the District of Columbia and, unless such
successor entity is the Issuer or a Guarantor, unconditionally assumes
all the obligations of such Guarantor pursuant to a supplemental
indenture in form and substance satisfactory to the Trustee, under the
Securities of each series, the Indenture and its Guaranty on the terms
set forth herein or therein; and
(ii) immediately after giving effect to such transaction, no
default or Event of Default with respect to the Securities of any
series exists.
Any such consolidation, merger, sale, lease or conveyance is subject
to the condition that the Trustee receive an Officers' Certificate of such
Guarantor and an Opinion of Counsel to the effect that the merger, sale, lease
or conveyance, and the assumption by any successor entity, complies with the
provisions of this Article and that all conditions precedent herein provided for
relating to such transactions have been complied with.
In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the
Guaranty endorsed upon the Securities of each series and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by such Guarantor, such successor Person shall succeed to and be
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<PAGE>
substituted for such Guarantor with the same effect as if it had been named
herein as a Guarantor. Such Guarantor's Guaranty shall in all respects have the
same legal rank and benefit under this Indenture theretofore and thereafter
issued in accordance with the terms of this Indenture as though such Guaranty
had been issued at the date of the execution hereof.
SECTION 1206. Execution and Delivery of Guarantees.
------------------------------------
The Guarantees to be endorsed on the Securities of each series shall
include the terms of the Guarantees set forth in this Article 12 and any other
terms that may be set forth in the form established pursuant to Section 205.
The Guarantors hereby agree to execute their respective Guarantee, in a form
established pursuant to Section 205, to be endorsed on each Security
authenticated and delivered by the Trustee.
The Guarantees shall be executed on behalf of each Guarantor by its
Chairman of the Board, its President or one of its Vice Presidents. The
signature of any or all of these persons on a Guarantee may be manual or
facsimile.
A Guarantee bearing the manual or facsimile signature of individuals
who were at any time the proper officers of a Guarantor shall bind such
Guarantor, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of the Security on
which such Guarantee is endorsed or did not hold such offices at the date of
such Guarantee.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee endorsed
thereon on behalf of the respective Guarantor. The Guarantors hereby agree that
their respective Guarantee set forth in Section 1201 shall remain in full force
and effect notwithstanding any failure to endorse a Guarantee on any Security.
SECTION 1207. No Waiver; Cumulative Remedies.
------------------------------
No failure on the part of the Trustee or any Holder to exercise, and
no delay in exercising, any right hereunder shall operate as a waiver thereof;
nor shall any
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<PAGE>
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law. The
Trustee and the Holders shall have all of the rights and remedies granted in
this Indenture and available at law or in equity, and these same rights and
remedies may be pursued separately, successively or concurrently against the
Issuer or the Guarantors.
SECTION 1208. Continuing Guarantees.
---------------------
Each Guaranty is a continuing guaranty and, except as otherwise
provided herein, shall (a) remain in full force and effect until the
satisfaction of the Guaranteed Obligations, (b) be binding upon the respective
Guarantor and (c) enure to the benefit of and be enforceable by the Trustee, the
Holders and their successors, transferees and assigns.
SECTION 1209. Severability.
------------
Any provisions of this Article 12 which is prohibited, unenforceable
or not authorized in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition, unenforceability or non-
authorization, without invalidating the remaining provisions hereof or affecting
the validity, enforceability or legality of such provision in any other
jurisdiction.
SECTION 1210. Limitation on Guarantor Liability.
---------------------------------
Each Guarantor, and by its acceptance hereof, each Holder, hereby
confirms that it is the intention of all such parties that the Guaranty by such
Guarantor pursuant to its Guaranty not constitute a fraudulent transfer or
conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law.
To effectuate the foregoing intention, the Holders and the Guarantors hereby
irrevocably agree that the obligations of such Guarantor under this Article 12
shall be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor that are relevant under such
laws and after giving effect to any collections from or
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<PAGE>
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 12, if any, result in the
obligations of the Guarantor under such Guaranty not constituting a fraudulent
transfer or conveyance.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Issuer's Option to Effect Defeasance or Covenant Defeasance.
-----------------------------------------------------------
The Issuer may at its option by Board Resolution, at any time, elect
to have either Section 1302 or Section 1303 applied to any Securities or any
series of Securities, as the case may be, upon compliance with the conditions
set forth below in this Article Thirteen. Any such election shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
301 for such Securities.
SECTION 1302. Defeasance and Discharge.
------------------------
Upon the Issuer's exercise of the option provided in Section 1301
applicable to this Section applied to any Securities or any series of
Securities, as the case may be, the Issuer shall be deemed to have been
discharged from its obligations with respect to such Securities as provided in
this Section on and after the date the conditions set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Issuer shall be deemed to have paid and discharged the entire indebtedness
represented by such Securities and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Issuer, shall execute proper
instru ments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Securities to receive, solely from the trust fund described in
Section 1304 and as more fully set forth in such Section, payments in respect of
the principal of (and premium, if any) and interest on such Securities when such
payments are due, (B) the Issuer's obligations with respect to such Securities
-106-
<PAGE>
under Sections 304, 305, 306, 307, 1002 and 1003, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (D) this Article
Thirteen. Subject to compliance with this Article Thirteen, the Issuer may
exercise its option (if any) to have this Section 1302 applied to any Securities
notwithstanding the prior exercise of its option (if any) to have Section 1303
applied to such Securities.
SECTION 1303. Covenant Defeasance.
-------------------
Upon the Issuer's exercise of the option provided in Section 1301
applicable to this Section applied to any Securities or any series of
Securities, as the case may be, (i) the Issuer shall be released from its
obligations under Sections 1005 through 1010, inclusive, and Section 801, and
(ii) the occurrence of an event specified in Sections 501(3) (with respect to
Clauses (1), (3) or (4) of Section 801), 501(5) (with respect to any of Sections
1005 through 1010, inclusive), 501(6) and 501(7) shall not be deemed to be or
result in an Event of Default in each case with respect to such Securities as
provided in this Section on and after the date the conditions set forth below
are satisfied (hereinafter, "covenant defeasance"). For this purpose, such
covenant defeasance means that, with respect to such Securities, the Issuer may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or Clause, whether
directly or indirectly by reason of any reference elsewhere herein to any such
Section or Clause, or by reason of any reference in any such Section or Clause
to any other provision herein or in any other document, but the remainder of
this Indenture and such Securities shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
--------------------------- -------------------
The following shall be the conditions to application of either
Section 1302 or Section 1303 to any Securities or any series of Securities, as
the case may be:
(1) The Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree
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<PAGE>
to comply with the provisions of this Article Thirteen applicable to it) as
trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof, in each case, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of (and premium, if
any,) and each installment of interest on such Securities on the respective
Stated Maturities of such principal or installment of interest in
accordance with the terms of this Indenture and of such Securities. For
this purpose, "U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any such U.S. Government Obligation or a specific
payment of principal of or interest on any such U.S. Government Obligation
held by such custodian for the account of the holder of such depository
receipt, provided that (except as required by law) such custodian is
--------
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<PAGE>
not authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal of or interest on the U.S. Government Obligation evidenced by
such depository receipt.
(2) In the case of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the Issuer
shall have delivered to the Trustee an Opinion of Counsel stating that (x)
the Issuer has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Holders such Securities will not recognize gain or loss for Federal income
tax purposes as a result of such deposit, defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as
would have been the case if such deposit, defeasance and discharge had not
occurred.
(3) In the case of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the Issuer
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of such deposit and covenant
defeasance and will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would have been the case if such
deposit and covenant defeasance had not occurred.
(4) The Issuer shall have delivered to the Trustee an Officers'
Certificate to the
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<PAGE>
effect that neither such Securities nor any other Securities of the same
series, if then listed on any securities exchange, will be delisted as a
result of such deposit.
(5) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 608 and for
purposes of the Trust Indenture Act with respect to any securities of the
Issuer.
(6) No Event of Default with respect to any series or event which
with notice or lapse of time or both would become an Event of Default with
respect to any series shall have occurred and be continuing on the date of
such deposit or, insofar as subsections 501(8) and (9) are concerned, at
any time during the period ending on the 121st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(7) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, any other
agreement or instrument to which the Issuer is a party or by which it is
bound.
(8) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1302
or the covenant defeasance under Section 1303 (as the case may be) have
been complied with.
(9) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company as
defined in the Investment Company Act or such trust shall be qualified
under such act or exempt from regulation thereunder.
-110-
<PAGE>
SECTION 1305. Deposited Money and U.S. Government Obligations to be Held in
-------------------------------------------------------------
Trust; Other Miscellaneous Provisions.
-------------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively, for purposes of
this Section 1305, the "Trustee") pursuant to Section 1304 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Issuer acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities,
of all sums due and to become due thereon in respect of principal (and premium,
if any) and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon Issuer Request
any money or U.S. Government Obligations held by it as provided in Section 1304
with respect to any Securities which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent defeasance or
covenant defeasance.
SECTION 1306. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1302 or 1303 with respect to any Securities by reason of
any order or judgment of any court or governmental authority enjoining,
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<PAGE>
restraining or otherwise prohibiting such application, then the Issuer's
obligations under this Indenture and such Securities from which the Issuer has
been discharged or released pursuant to Section 1302 or 1303 shall be revived
and reinstated as though no deposit had occurred pursuant to this Article
Thirteen until such time as the Trustee or Paying Agent is permitted to apply
all such money in accordance with Section 1302 or 1303; provided, however, that
-------- -------
if the Issuer makes any payment of principal of (and premium, if any) or
interest on any such Security following the reinstatement of its obligations,
the Issuer shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money held by the Trustee or the Paying Agent.
ARTICLE FOURTEEN
SINKING FUNDS
Section 1401. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of any series designated pursuant to Section
301 as being subject to redemption or purchase pursuant to any sinking fund or
analogous provisions, except as otherwise specified as contemplated by Section
301 for such Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any Securities is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of such Securities is herein referred to as an "optional sinking fund
payment". Unless otherwise provided by the terms of any Securities, the cash
amount of any sinking fund payment shall be subject to reduction as provided in
Section 1402. Each sinking fund payment shall be applied to the redemption of
Securities as provided for by the terms of such Securities.
Section 1402. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Issuer (1) may deliver Outstanding Securities of a series (other
than any previously called for redemp-
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<PAGE>
tion) and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Issuer pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to any Securities of
such series required to be made pursuant to the terms of such Securities as and
to the extent provided for by the terms of such Securities; provided that the
--------
Securities to be so credited have not been previously so credited. The
Securities to be so credited shall be received and credited for such purpose by
the Trustee at the Redemption Price, as specified in the Securities so to be
redeemed, for redemption through operation of the sinking fund and the amount of
such sinking fund payment shall be reduced accordingly.
Section 1403. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for any
Securities, the Issuer will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1402 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days prior to each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1104 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Issuer
in the manner provided in Section 1105. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1107 and 1108.
____________________
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
REGENCY CENTERS, L.P.
By: Regency Realty Corporation,
its general partner
By_____________________________
Name:
Title:
Attest:
____________________
Name:
Title:
REGENCY REALTY CORPORATION
By_____________________________
Name:
Title:
Attest:
____________________
Name:
Title:
-114-
<PAGE>
REGENCY OFFICE PARTNERSHIP, L.P.
By: Regency Centers, L.P.,
its general partner
By: Regency Realty Corporation,
its general partner
By_____________________________
Name:
Title:
Attest:
__________________________
Name:
Title:
RRC FL FIVE, INC.
By__________________________________
Name:
Title:
Attest:
-115-
<PAGE>
__________________________
Name:
Title:
RRC ACQUISITIONS, INC.
By_____________________________
Name:
Title:
Attest:
__________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By____________________________
Name:
Title:
-116-
<PAGE>
Exhibit 8.1
February 24, 1999
Regency Centers, L.P.
Regency Realty Corporation
121 West Forsyth Street, Suite 200
Jacksonville, Florida 32202
Ladies and Gentlemen:
You have requested our opinions as tax counsel to Regency Centers, L.P.
(the "Partnership") and Regency Realty Corporation (the "Company") concerning
the federal income tax consequences in connection with the registration
statement on Form S-3, filed with the Securities and Exchange Commission on the
date hereof (which registration statement is hereinafter referred to as the
"Registration Statement") registering debt securities which may be sold from
time to time (the "Notes") and with respect to qualification of the Company as a
real estate investment trust (a "REIT") for federal income tax purposes.
Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Registration Statement.
In connection with the opinions rendered below, we have reviewed the
Registration Statement, the agreement of limited partnership of the Partnership,
the articles of incorporation and bylaws of the Company and such other documents
that we deemed relevant. The opinions expressed in this letter are based upon
certain factual representations set forth in the Registration Statement and in
certificates of officers of the Company.
In connection with the opinions rendered below, we have assumed generally
that:
1. each of the documents referred to above has been duly authorized,
executed, and delivered; is authentic, if an original, or is accurate, if a
copy; and has not been amended;
2. during its short taxable year ended December 31, 1993 and subsequent
taxable years, the Company has operated and will continue to operate in such a
manner that makes and
<PAGE>
Regency Centers, L.P.
February 24, 1999
Page 2
will continue to make the factual representations contained in a certificate,
dated as of the date hereof and executed by a duly appointed officer of the
Company (the "Officer's Certificate"), true for such years;
3. the Company will not make any amendments to its organizational
documents or to the organizational documents of Regency Realty Group, Inc., a
Florida corporation ("Management Company"), or the Partnership, after the date
of this opinion that would affect its qualification as a REIT for any taxable
year;
4. no actions will be taken by the Company or Management Company after
the date hereof that would have the effect of altering the facts upon which the
opinion set forth below is based.
In connection with the opinions rendered below, we also have relied upon
the correctness of the factual representations contained in the Officer's
Certificate.
Based solely on the documents and assumptions set forth above and the
factual representations set forth in the Officer's Certificate, and without
further investigation, we are of the opinion that the summaries set forth in the
prospectus (the "Prospectus") included as part of the Registration Statement
under the caption "Federal Income Tax Considerations" is accurate in all
material respects as to matters of law and legal conclusions. In addition,
based upon and subject to the foregoing, we confirm our specific opinions in the
Prospectus under the caption "Federal Income Tax Considerations".
The foregoing opinions are based on current provisions of the Code and the
Treasury regulations thereunder (the "Regulations"), published administrative
interpretations thereof, and published court decisions, all of which are subject
to change either prospectively or retroactively. The Internal Revenue Service
has not issued Regulations or administrative interpretations with respect to
various provisions of the Code relating to REIT qualification. No assurance can
be given that the law will not change in a way that will prevent the Company
from qualifying as a REIT or that may change the other legal conclusions stated
herein.
The foregoing opinion is limited to the U.S. federal income tax matters
addressed herein, and no other opinions are rendered with respect to other
federal tax matters or to any issues arising under the tax laws of any other
country, or any state or locality. We undertake no obligation to update the
opinion expressed herein after the date of this letter.
<PAGE>
Regency Centers, L.P.
February 24, 1999
Page 3
We hereby consent to the inclusion of this opinion as Exhibit 8.1 in said
Registration Statement and to the reference to this firm under the captions
"Federal Income Tax Considerations" and "Legal Matters" in the Prospectus. In
giving this consent we do not hereby admit that we come within the category of
persons whose consent is required under Section 7 of the Securities Act of 1933,
as amended, or the rules or regulations of the Securities and Exchange
Commission promulgated thereunder.
Sincerely,
FOLEY & LARDNER
<PAGE>
EXHIBIT 12
Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
Sept-98 1997 1996 1995 1994
-------- ------- ------- ------ ------
<S> <C> <C> <C> <C> <C>
Pretax net income 35,918 23,510 4,942 796 554
Plus fixed charges 17,970 15,510 6,915 5,676 3,137
Less gain on sale (10,737) (451) - - -
Less preferred stock dividend - - (58) (591) (283)
Less capitalized interest (3,447) (1,896) (381) (285) (216)
------- ------ ------ ----- -----
Earnings 39,704 36,673 11,418 5,596 3,192
Preferred stock dividend - - 58 591 283
Interest expense 14,523 13,614 6,476 4,800 2,638
Capitalized interest 3,447 1,896 381 285 216
------- ------ ------ ----- -----
Total fixed charges 17,970 15,510 6,915 5,676 3,137
Ratio 2.2 2.4 1.7 1.0 1.0
</TABLE>
<PAGE>
Exhibit 23.2
ACCOUNTANTS' CONSENT
The Board of Directors
Regency Realty Corporation:
We consent to the use of our reports incorporated by reference, or included,
herein and to the reference to our firm under the heading "Experts" in the
prospectus.
KPMG LLP
Jacksonville, Florida
February 22, 1999
<PAGE>
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of Regency
Centers, L.P. of our reports dated January 23, 1998 relating to the financial
statements of Pacific Retail Trust for the years ended December 31, 1997 and
1996 and dated February 9, 1996 relating to the financial statements of Pacific
Retail Trust for the period from April 27, 1995 (Inception) to December 31,
1995, included in the Regency Centers, L.P. registration statement on Form S-4
(No. 333-63723). We also consent to the application of the report dated January
23, 1998 to the Financial Statement Schedule of Pacific Retail Trust for the
year ended December 31, 1997, included in the Regency Centers, L.P.
registration statement on Form S-4 (No. 333-63723) when such schedule is read
in conjunction with the financial statements referred to in our report. The
audits referred to in such report also included this schedule. We also consent
to the reference to us under the heading "Experts" in such Prospectus.
PricewaterhouseCoopers LLP
Dallas, Texas
February 19, 1999
<PAGE>
Registration No. 333-____
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Statement of Eligibility Under the
Trust Indenture Act of 1939 of a
Corporation Designated to Act as Trustee
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
-------
SECTION 305(b)(2)
First Union National Bank
(Exact name of trustee as specified in its charter)
United States of America
(Jurisdiction of incorporation or organization if not a U.S. national bank)
22-1147033
(I.R.S. Employer Identification Number)
One First Union
301 South College Street
Charlotte, North Carolina
(Address of principal executive offices)
28288
(Zip code)
Rhonda Caraway
First Union National Bank
Corporate Trust Department FL0122
225 Water Street, Third Floor
Jacksonville, Florida 32202
(904)361-5581
(Name, address and telephone number of agent for service)
Regency Centers, L.P.
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
59-3429602
(I.R.S. Employer Identification No.)
121 West Forsyth Street
Suite 200
Jacksonville, Florida
(904) 356-7000
(Address of principal executive offices)
32202
(Zip code)
Regency Centers, L.P.
Debt Securities to be issued
from time to time, in one or more
series, and registered pursuant
to the Form S-3 of the obligor
(Title of the indenture securities)
<PAGE>
I. General information. Furnish the following information as to the trustee:
a. Name and address of each examining or supervising authority to
which it is subject.
NAME ADDRESS
Board of Governors of the Federal Washington, D.C.
Reserve System
Comptroller of the Currency Washington, D.C.
Federal Deposit Insurance Washington, D.C.
Corporation
b. Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
1. Affiliations with the obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation.
The obligor is not an affiliate of the trustee. (See Note 1 on page 6.)
2. Voting securities of the trustee. Furnish the following information
as to each class of voting securities of the trustee:
As of January 7, 1999 (Insert date within 31 days).
-------------------
COL. A COL. B
TITLE OF CLASS AMOUNT OUTSTANDING
Common Stock 990,800,000
(See Note 1 on page 6.)
3. Trusteeships under other indentures. If the trustee is a trustee
under another indenture under which any other securities, or certificates of
interest or participation in any other securities, of the obligor are
outstanding, furnish the following information:
a. Title of the securities outstanding under each such other
indenture.
Not Applicable.
b. A brief statement of the facts relied upon as a basis for the
claim that no conflicting interest within the meaning of Section 310(b)(1) of
the Act arises as a result of the trusteeship under any such other indenture,
including a statement as to how the indenture securities will rank as compared
with the securities issued under such other indenture.
Not Applicable.
2
<PAGE>
4. Interlocking directorates and similar relationships with the obligor
or underwriters. If the trustee or any of the directors or executive officers
of the trustee is a director, officer, partner, employee, appointee, or
representative of the obligor of any underwriter for the obligor, identify each
such person having any such connection and state the nature of each such
connection.
Not Applicable - see answer to Item 13.
5. Voting securities of the trustee owned by the obligor or its
officials. Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner, and
executive officer of the obligor.
As of ________________ (Insert date within 31 days).
COL. D
COL. C PERCENTAGE OF VOTING SECURITIES
COL. A COL. B AMOUNT OWNED REPRESENTED BY AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
Not Applicable - see answer to Item 13.
6. Voting securities of the trustee owned by underwriters or their
officials. Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner, and executive officer of each such underwriter:
As of __________________ (Insert date within 31 days).
COL. D
COL. C PERCENTAGE OF VOTING SECURITIES
COL. A COL. B AMOUNT OWNED REPRESENTED BY AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
Not Applicable - see answer to Item 13.
7. Securities of the obligor owned or held by the trustee. Furnish the
following information as to securities of the obligor owned beneficially or held
as collateral security for obligations in default by the trustee:
As of __________________ (Insert date within 31 days).
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COL. C
AMOUNT OWNED COL. D
COL. B BENEFICIALLY OR PERCENT OF CLASS
WHETHER THE SECURITIES HELD AS COLLATERAL REPRESENTED BY
COL. A ARE VOTING OR SECURITY FOR AMOUNT GIVEN
TITLE OF CLASS NONVOTING SECURITIES OBLIGATIONS IN DEFAULT IN COL. C
Not Applicable - see answer to Item 13.
8. Securities of underwriters owned or held by the trustee. If the
trustee owns beneficially or hold as collateral security for obligations in
default any securities of an underwriter for the obligor, furnish the following
information as to each class of securities of such underwriter any of which are
so owned or held by the trustee:
As of _________________ (Insert date within 31 days).
COL. C COL. D
AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS
COL. A COL. B OR HELD AS COLLATERAL REPRESENTED BY
TITLE OF ISSUER AMOUNT SECURITY FOR OBLIGATIONS AMOUNT GIVEN
AND TITLE OF CLASS OUTSTANDING IN DEFAULT BY TRUSTEE IN COL. C
Not Applicable - see answer to Item 13.
9. Ownership or holdings by the trustee of voting securities of certain
affiliates or security holders of the obligor. If the trustee owns beneficially
or holds as collateral security for obligations in default voting securities of
a person who, to the knowledge of the trustee (1) owns 10 percent or more of the
voting securities of the obligor or (2) is an affiliate, other than a
subsidiary, of the obligor, furnish the following information as to the voting
securities of such person:
As of __________________ (Insert date within 31 days).
COL. C COL. D
AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS
COL. A COL. B OR HELD AS COLLATERAL REPRESENTED BY
TITLE OF ISSUER AMOUNT SECURITY FOR OBLIGATIONS AMOUNT GIVEN
AND TITLE OF CLASS OUTSTANDING IN DEFAULT BY TRUSTEE IN COL. C
Not Applicable - see answer to Item 13.
10. Ownership or holdings by the trustee of any securities of a person
owning 50 percent or more of the voting securities of the obligor. If the
trustee owns beneficially or holds as collateral security for obligations in
default any securities of a person who, to the knowledge of the trustee, owns 50
percent or more of the voting securities of the obligor, furnish the following
information as to each class of securities of such person any of which are so
owned or held by the trustee:
As of __________________ (Insert date within 31 days).
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COL. C COL. D
AMOUNT OWNED BENEFICIALLY PERCENT OF CLASS
COL. A COL. B OR HELD AS COLLATERAL REPRESENTED BY
TITLE OF ISSUER AMOUNT SECURITY FOR OBLIGATIONS AMOUNT GIVEN
AND TITLE OF CLASS OUTSTANDING IN DEFAULT BY TRUSTEE IN COL. C
Not Applicable - See answer to Item 13.
11. Indebtedness of the Obligor to the Trustee. Except as noted in the
instructions, if the obligor is indebted to the trustee, furnish the following
information:
As of __________________ (Insert date within 31 days).
COL. A COL. B COL. C
NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE
Not Applicable - See answer to Item 13.
12. Defaults by the Obligor.
a. State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
None.
b. If the trustee is a trustee under another indenture under which
any other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been a default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
None.
13. Affiliations with the Underwriters. If any underwriter is an
affiliate of the trustee, describe each such affiliation.
Not Applicable.
14. Foreign Trustee. Identify the order or rule pursuant to which the
foreign trustee is authorized to act as sole trustee under indentures qualified
or to be qualified under the Act.
Not Applicable.
15. List of exhibits. List below all exhibits filed as a part of this
statement of eligibility.
1. Articles of Association of First Union National Bank as now in
effect.*
2. Certificate of Authority of the trustee to commence business.*
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3. Copy of the authorization of the trustee to exercise corporate
trust powers.*
4. Existing bylaws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
________________________
* Previously filed with the Securities and Exchange Commission on March
20, 1998 as an Exhibit to Form T-1 in connection with Registration Statement
Number 333-24773 and incorporated herein by reference.
NOTES:
Note 1: The trustee is a subsidiary of First Union Corporation, a bank
holding company; all of the voting securities of the trustee are held by First
Union Corporation. The voting securities of First Union Corporation are
described in Item 3.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, First Union National Bank, a national banking association [state form
of organization] organized and existing under the laws of the United States of
--------------------
America, has duly caused this statement of eligibility to be signed on its
- -------
behalf by the undersigned, thereunto duly authorized, all in the city of
Jacksonville, and State [or other jurisdiction] of Florida, on the 16th day of
- ------------ ------- ------
February, 1999.
- --------- ----
FIRST UNION NATIONAL BANK
(Trustee)
By: /s/ R. CARAWAY
----------------------------------
Rhonda Caraway, Trust Officer
(Name and Title)
6
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EXHIBIT 6
First Union National Bank, pursuant to the requirements of Section 321(b)
of the Trust Indenture Act of 1939, as amended (the "Act") in connection with
the proposed issuance by Regency Centers, L.P. of its debt securities to be
issued from time to time hereby consents that reports of examination by federal,
state, territorial, or district authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor, as contemplated
by Section 321(b) of the Act.
Dated: February 16, 1999
FIRST UNION NATIONAL BANK
By: /s/ R. Caraway
-------------------------------------
Rhonda Caraway, Trust Officer
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REPORT OF CONDITION EXHIBIT 7
Legal Title of Bank: First Union National Bank
Address: Two First Union Center
City, State, Zip: Charlotte, NC 28288-0201
FDIC Certificate No.: 33869
Consolidated Report of Condition for Insured Commercial and State-Chartered
Savings Banks for December 31, 1998
Schedule RC--Balance Sheet
ASSETS
Thousand of Dollars
-------------------
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin......... 12,220,276
Interest-bearing balances.................................. 2,533,262
Securities.................................................. /////////
Held-to-maturity securities................................ 1,891,097
Available-for-sale
securities............................................... 36,783,824
Federal funds sold and securities purchased under agreements //////////
to resell................................................. 8,034,320
Loans and lease financing receivables:
Loan and leases, net of unearned income..................... 133,283,216
LESS: Allowance for loan and lease losses.................. 1,810,465
LESS: Allocated transfer risk reserve...................... 0
Loans and leases, net of unearned income, allowance, and
reserve..................................................... 131,472,751
Assets held in trading accounts............................. 7,042,399
Premises and fixed assets (including capitalized leases).... 3,165,970
Other real estate owned..................................... 128,223
Investment in unconsolidated subsidiaries and associated //////////
companies................................................... 323,890
Customer's liability to this bank on acceptances
outstanding................................................ 1,268,425
Intangible assets........................................... 5,200,418
Other assets................................................ 12,418,468
Total assets................................................ 222,483,323
LIABILITIES
Deposits:
In domestic offices.................................... 137,007,272
Noninterest-bearing.................................. 26,154,252
Interest-bearing..................................... 110,853,020
In foreign offices, Edge and Agreement subsidiaries,
and IBFs............................................... 10,021,556
Noninterest-bearing.................................. 477,500
Interest-bearing..................................... 9,544,056
Federal funds purchased and securities sold under agreements //////////
to repurchase 19,607,885
Demand notes issued to the U.S. Treasury.................... 389,283
Trading liabilities......................................... 5,075,053
Other borrowed money:....................................... /////////
With a remaining maturity of one year or less............... 14,089,286
With a remaining maturity of one year through three years... 2,371,510
With a remaining maturity of more than three years.......... 767,010
Not Applicable ////////
Bank's liability on acceptances executed and outstanding.... 1,280,934
Subordinated notes and debentures........................... 4,045,123
Other liabilities........................................... 9,151,594
Total liabilities........................................... 203,806,506
EQUITY CAPITAL
Perpetual preferred stock and related surplus............... 160,540
Common Stock................................................ 454,543
Surplus..................................................... 13,206,325
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Undivided profits and capital reserves...................... 4,441,457
Net unrealized holding gains (losses) on available-for-sale /////////
securities................................................. 417,625
Cumulative foreign currency translation adjustments......... (3,673)
Total equity capital........................................ 18,676,817
Total liabilities and equity capital........................ 222,483,323
9
