EXHIBIT 8.5
TRANSFER RESTRICTION AGREEMENT
THIS TRANSFER RESTRICTION AGREEMENT, dated as of September 23, 1998, is
entered into by and among Security Capital Holdings, S.A., a Luxembourg
corporation ("SCH"), and Regency Realty Corporation, a Florida corporation
("Regency").
WHEREAS, as of the date hereof SCH owns beneficially 46,985,458.985
shares of beneficial interest, $0.01 par value per share ("PRT Common Stock"),
of Pacific Retail Trust, a Maryland real estate investment trust ("PRT"), (all
such shares and any shares of PRT Common Stock that hereafter become
beneficially owned by SCH prior to the termination of this Agreement being
referred to herein as the "PRT Shares");
WHEREAS, PRT and Regency are entering into an Agreement and Plan of
Merger of even date herewith (as such Agreement may hereafter be amended from
time to time, the "Merger Agreement"), pursuant to which, upon the terms and
subject to the conditions thereof, PRT will merge with and into Regency (the
"Merger");
WHEREAS, concurrently herewith, Regency, PRT, SCH and Security Capital
U.S. Realty, a Luxembourg corporation and the parent of SCH, are entering into a
Voting Agreement (the "Voting Agreement"), pursuant to which, among other
things, SCH has agreed to vote its PRT Shares in favor of the Merger;
WHEREAS, as a condition of Regency's willingness to enter into the
Merger Agreement, Regency has requested that SCH agree, and in order to induce
Regency to enter into the Merger Agreement, SCH has agreed, to the matters
addressed herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties, covenants and agreements set forth herein and in
the Merger Agreement, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. TRANSFER OF PRT SHARES. Subject to the terms and conditions
of this Agreement, until the earlier of (i) the termination of the Merger
Agreement in accordance with its terms and (ii) the close of business on the
date of the later to occur of the special meetings of shareholders of PRT and
Regency called to consider and vote upon the Merger (including any adjournments
thereof) and except as otherwise provided herein, SCH will not (a) sell or
otherwise dispose of any of the PRT Shares (provided that the foregoing shall
not preclude a pledge of PRT Shares as security with respect to a bona fide loan
from a financial institution), (b) deposit any of the PRT Shares into a voting
trust or enter into a voting agreement or arrangement (other than the Voting
Agreement) with respect to any of the PRT Shares or grant any proxy with respect
thereto, or (c) enter into any contact, option or other arrangement or
undertaking with respect to the direct or indirect sale, assignment, transfer or
other disposition of any of the PRT Shares.
2. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damages would occur in the event any provision of this Agreement was
not performed in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at law
or in equity.
3. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Florida, without giving
effect to principles of conflict of laws.
4. COUNTERPARTS. This Agreement may be executed by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but both of which, taken together, shall
constitute one and the same agreement.
5. AMENDMENT. This Agreement shall not be amended without the
written consent of PRT and the parties hereto.
6. NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date delivered, mailed or transmitted, and shall be effective
upon receipt, if delivered personally, mailed by registered or certified mail
(postage prepaid, return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
changes of address) or sent by electronic transmission to the telecopier number
specified below:
If to Regency, to:
Regency Realty Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
▇▇▇▇▇ & Lardner
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to SCH, to
c/o Security Capital Holdings, S.A.
▇▇ ▇▇▇▇▇ ▇'▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇
and to:
-2-
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
7. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to the
subject matter hereof.
8. ASSIGNMENT. This Agreement shall not be assigned by
operation of law or otherwise.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective, duly authorized officers, as of the date first
above written.
Regency Realty Corporation
By:
Name:
Title:
Security Capital Holdings, S.A.
By:
Name:
Title:
-3-