REGENCY CENTERS, L.P.
Amendment No. 5 to Third Amended and Restated
Agreement of Limited Partnership (the "Partnership Agreement")
Section 1. Definitions. Capitalized terms used and not otherwise
defined herein shall have the meaning assigned to them in the Partnership
Agreement.
Section 2. Amendment Regarding Preferred Units. Section 4.2(b) of the
Partnership Agreement is hereby amended to read in full as follows (new
language is double underscored and deleted language is stricken through):
"(b) Consent Granted by Limited Partners for Certain
Issuances. Pursuant to Section 4.2(a), the Consent of Limited Partners
holding Original Limited Partnership Units and the Consent of Limited
Partners holding Additional Units has been obtained for, and no further
Consent of the Limited Partners or of any class of Limited Partners
shall be required for, the issuance of additional Units from time to
time as follows:
(i) Issuance of Preferred Units. Subject to Sections
4.5(f)(ii), 4.6(f)(ii), 4.7(f)(ii), 4.8(f)(ii) and 4.9(f)(ii),
Preferred Units may be issued to any Limited Partner if, as a
result of such issuance and the application of the proceeds
therefrom, the sum of (i) the aggregate liquidation preference
of all outstanding Preferred Units entitled to priority upon
liquidation and (ii) the Partnership's gross sales price of
outstanding Preferred Units entitled to priority only with
respect to distributions of Available Cash would not exceed
twenty thirty percent (230%) of the Partnership's book value
before depreciation and amortization as of the end of the
calendar quarter preceding the date of issuance, determined in
accordance with generally accepted accounting principles.
Nothing in this Section 4.2(b)(i) shall be construed to
prohibit the General Partner from (i) redeeming Series A
Preferred Units or other Preferred Units issued from time to
time pursuant to this Section 4.2(b)(i) to third parties who
are not Affiliates of the General Partner and (ii) holding and
receiving distributions on such Redeemed Preferred Units where
such Units are redeemed in exchange for preferred stock of the
General Partner having designations, preferences and other
rights substantially similar to the designations, preferences
and other rights of the Units so redeemed."
Section 3. Counterparts. This Amendment may be executed in one or more
counterparts, all of which shall constitute one and the same agreement.
Section 4. Effective Date. This Amendment shall be effective as of
September _, 2000.
GENERAL PARTNER
Regency Realty Corporation
By:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its Managing Director and Executive
Vice President
SECURITY CAPITAL U.S. REALTY
By:
Name:
Title:
SECURITY CAPITAL HOLDINGS S.A.
By:
Name:
Title:
ARDEN SQUARE HOLDINGS SARL
By:
Name:
Title:
BLOSSOM VALLEY HOLDINGS SARL
By:
Name:
Title:
▇▇▇▇▇▇ STREET PLAZA HOLDINGS SARL
By:
Name:
Title:
DALLAS HOLDINGS SARL
By:
Name:
Title:
EL CAMINO HOLDINGS SARL
By:
Name:
Title:
FRIARS MISSION HOLDINGS SARL
By:
Name:
Title:
Regency Centers, L.P.
Amendment No. 6 to Third Amended and Restated Agreement of
Limited Partnership
Relating to 8.75% Series F Cumulative Redeemable Preferred Units
This Amendment No. 6 (this "Amendment") to the Third Amended and Restated
Agreement of Limited Partnership, dated as of September 1, 1999 (as amended
through the date hereof, the "Partnership Agreement"), of Regency Centers, L.P.,
a Delaware limited partnership (the "Partnership"), is made as of the September
8, 2000, by Regency Realty Corporation, Inc., a Florida corporation, as general
partner (the "General Partner"), and the undersigned Limited Partner that is
being admitted to the Partnership on the date hereof.
RECITALS
WHEREAS, the General Partner and the Limited Partner desire to amend the
Partnership Agreement to create a class of Preferred Units and to set forth the
rights, powers, duties and preferences of such Preferred Units.
NOW, THEREFORE, pursuant to the authority contained in Section 4.2(b) of
the Partnership Agreement, the General Partner hereby amends the Partnership
Agreement as follows:
A. Defined Terms. Capitalized terms used in this Amendment and not
otherwise defined herein shall have the meaning assigned thereto in the
Partnership Agreement.
B. Amendments. Effective as of the date hereof, the Partnership Agreement is
hereby amended as follows:
Section 1. Amendments to Article 1 - Defined Terms. The following terms
are hereby added to Article 1 in their correct alphabetical order:
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under common control with such
Person. For the purposes of this definition, "control" when used with
respect to any Person, means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies
of such Person, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Series F Excess Units" has the meaning set forth in Section
4.10(g)(i)(C).
"Series F Exchange Notice" has the meaning set forth in Section
4.10(g)(ii)(A).
"Series F Exchange Price" has the meaning set forth in Section
4.10(g)(i)(A).
"Series F Preferred Partner" means the Limited Partner who received
Series F Preferred Units and also include any permitted transferee of a
Series F Preferred Partner pursuant to Section 11.3 and the General
Partner or any Affiliate of Regency upon exchange or redemption of the
Series F Preferred Units pursuant to Section 4.10.
"Series F Preferred Stock" has the meaning set forth in Section
4.10(g)(i)(A).
"Series F Preferred Units" means the Partnership Interest in the
Partnership issued pursuant to Section 4.2 and Section 4.10 hereof
representing 8.75% Series F Cumulative Redeemable Preferred Units. The
term "Series F Preferred Unit" does not include or refer to any Original
Limited Partnership Units, Additional Units or Class B Units.
"Series F Preferred Unit Distribution Payment Date" has the meaning
set forth in Section 4.10(c)(i).
"Series F Preferred Unit Partnership Record Date" has the meaning
set forth in Section 4.10(c)(i).
"Series F Priority Return" means an amount equal to 8.75% per annum,
determined on the basis of a 360-day year of twelve 30-day months (or
actual days for any month which is shorter than a full monthly period),
cumulative to the extent not distributed for any given distribution
period, of the stated value of $100 per Series F Preferred Unit,
commencing on the date of issuance of such Series F Preferred Unit.
"Series F Redemption Price" has the meaning set forth in Section
4.10(e)(i).
Section 2. Section 4.1 - Capital Contributions of Partners Holding Parity
Preferred Units. Section 4.1(d) of the Partnership Agreement is hereby deleted
and the following inserted in lieu thereof:
"(d) (i) The Series A Preferred Partners have contributed cash to the
Partnership in the amount of $50 per Series A Preferred Unit. (ii) The
Series B Preferred Partners, Series C Preferred Partners, Series D
Preferred Partners, the Series E Preferred Partners and the Series F
Preferred Partner have each contributed cash to the Partnership in the
amount of $100 per Series B Preferred Unit, Series C Preferred Unit,
Series D Preferred Unit, the Series E Preferred Unit and Series F
Preferred Unit, respectively. The distribution rights for the Parity
Preferred Units shall be senior to the distribution rights of the Original
Limited Partnership Units, the Additional Units, Common Units, the Class 2
Units and the Class B Units. The number of Parity Preferred Units issued
to the Series D Preferred Partners, the Series E Preferred Partners and
Series F Preferred Partner, respectively, are each set forth on Exhibit
A."
Section 3. Section 4.2 - Issuance of Additional Partnership Interests.
-----------------------------------------------------------
(a) Section 4.2(a) is hereby amended by inserting the words "and
Section 4.10(f)(ii) and" after the reference to "Section 4.5 (f)(ii)" in
the third sentence thereof.
(b) Section 4.2(b)(i) is hereby amended by inserting the words "and
Section 4.10(f)(ii) and" after the reference to "Section 4.5 (f)(ii)" in
the first line thereof.
Section 4. Section 4.10 - Series F Preferred Units. The Partnership
Agreement is hereby amended by inserting the following as a new Section 4.10:
"Section 4.10 Issuance of Series F Preferred Units.
------------------------------------
(a) Designation and Number. A series of Partnership Units in the
Partnership designated as the "8.75%" Series F Cumulative Redeemable
Preferred Units (the "Series F Preferred Units") is hereby established.
The number of Series F Preferred Units shall be 240,000.
(b) Rank. The Series F Preferred Units will, with respect to
distributions and rights upon voluntary or involuntary liquidation,
winding-up or dissolution of the Partnership, rank senior to all classes
or series of Partnership Interests now or hereafter authorized, issued or
outstanding, other than the Series A Preferred Units, Series B Preferred
Units, Series C Preferred Units, Series D Preferred Units, Series E
Preferred Units and any class or series of equity securities of the
Partnership issued after the issuance of the Series F Preferred Units and
expressly designated in accordance with the Partnership Agreement as
ranking on a parity with or senior to the Series F Preferred Units as to
distributions or rights upon voluntary or involuntary liquidation,
winding-up or dissolution of the Partnership. The Series F Preferred Units
are expressly designated as ranking on a parity with the Series A
Preferred Units, the Series B Preferred Units, the Series C Preferred
Units, the Series D Preferred Units and the Series E Preferred Units as to
both distributions and rights upon voluntary or involuntary liquidation,
winding-up or dissolution of the Partnership.
(c) Distributions.
-------------
(i) Payment of Distributions. Subject to the rights of holders
of Parity Preferred Units and any holders of Partnership Interests
issued after the date hereof in accordance herewith ranking senior
to the Series F Preferred Units as to the payment of distributions,
holders of Series F Preferred Units shall be entitled to receive,
when, as and if declared by the Partnership acting through the
General Partner, out of Available Cash and Capital Transaction
Proceeds, cumulative preferential cash distributions at the rate per
annum of 8.75% of the original Capital Contribution per Series F
Preferred Unit. Such distributions shall be cumulative, shall accrue
from the original date of issuance and will be payable (A) quarterly
(such quarterly periods to be the quarterly periods ending on the
dates set forth in this sentence) in arrears, on or before March 31,
June 30, September 30 and December 31 of each year, commencing on
September 30, 2000 (with the first such payment to include the
amount accrued from the period commencing the date hereof and ending
September 30, 2000) and, (B) in the event of (i) an exchange of
Series F Preferred Units into Series F Preferred Stock, or (ii) a
redemption of Series F Preferred Units, on the exchange date or
redemption date, as applicable (each a " Series F Preferred Unit
Distribution Payment Date"). The amount of the distribution payable
for any period will be computed on the basis of a 360-day year of
twelve 30-day months and for any period shorter than a full
quarterly period for which distributions are computed, the amount of
the distribution payable will be computed on the basis of the ratio
of the actual number of days elapsed in such period to ninety (90)
days. If any date on which distributions are to be made on the
Series F Preferred Units is not a Business Day (as defined herein),
then payment of the distribution to be made on such date will be
made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay) except
that, if such Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such
date. Distributions on September 30, 2000 and thereafter will be
made to the holders of record of the Series F Preferred Units on the
relevant record dates to be fixed by the Partnership acting through
the General Partner, which record dates shall be not less than ten
(10) days and not more than thirty (30) Business Days prior to the
relevant Preferred Unit Distribution Payment Date (the "Series F
Preferred Unit Partnership Record Date").
(ii) Limitation on Distributions. No distribution on the
Series F Preferred Units shall be declared or paid or set apart for
payment by the Partnership at such time as the terms and provisions
of any agreement of the Partnership relating to its indebtedness
(other than any agreement with the holder of Partnership Interests
or an Affiliate thereof), prohibits such declaration, payment or
setting apart for payment or provide, that such declaration, payment
or setting apart for payment would constitute a breach thereof or a
default thereunder, or if such declaration, payment or setting apart
for payment shall be restricted or prohibited by law. Nothing in
this Section 4.10(c)(ii) shall be deemed to modify or in any manner
limit the provisions of Sections 4.10(c)(iii) or 4.10(c)(iv).
(iii) Distributions Cumulative. Distributions on the Series F
Preferred Units will accrue whether or not the terms and provisions
of any agreement of the Partnership, including any agreement
relating to its indebtedness, at any time prohibit the current
payment of distributions, whether or not the Partnership has
earnings, whether or not there are funds legally available for the
payment of such of such distributions and whether or not such
distributions are authorized. Accrued but unpaid distributions on
the Series F Preferred Units will accumulate as of the Series F
Preferred Unit Distribution Payment Date on which they first become
payable. Distributions on account of arrears for any past
distribution periods may be declared and paid at any time, without
reference to a regular Series F Preferred Unit Distribution Payment
Date to holders of record of the Series F Preferred Units on the
record date fixed by the Partnership acting through the General
Partner which date shall be not less than ten (10) days and not more
than thirty (30) Business Days prior to the payment date.
Accumulated and unpaid distributions will not bear interest.
(iv) Priority as to Distributions.
----------------------------
(A) So long as any Series F Preferred Units are
outstanding, no distribution of cash or other property shall
be authorized, declared, paid or set apart for payment on or
with respect to any class or series of Junior Units with
respect to distributions, nor shall any cash or other property
be set aside for or applied to the purchase, redemption or
other acquisition for consideration of any Series F Preferred
Units, any Parity Preferred Units with respect to
distributions or any Junior Units, unless, in each case, all
distributions accumulated on all Series F Preferred Units and
all classes and series of outstanding Parity Preferred Units
as to the payment of distributions have been paid in full.
Without limiting Section 4.10(f)(ii), the foregoing sentence
will not prohibit (a) distributions payable solely in Junior
Units, (b) the conversion of Junior Units or Parity Preferred
Units into Junior Units, or (c) the redemption of Partnership
Interests corresponding to any Series F Preferred Stock,
Parity Preferred Stock or Junior Stock to be purchased by the
General Partner pursuant to Article 5 of the Articles of
Incorporation to preserve the General Partner's status as a
real estate investment trust, provided that such redemption
shall be upon the same terms as the corresponding purchase
pursuant to Article 5 of the Articles of Incorporation.
(B) So long as distributions have not been paid in full
(or a sum sufficient for such full payment is not irrevocably
deposited in trust for payment) upon the Series F Preferred
Units, all distributions authorized and declared on the Series
F Preferred Units and all classes or series of outstanding
Parity Preferred Units as to distributions shall be authorized
and declared so that the amount of distributions authorized
and declared per Series F Preferred Unit and such other
classes or series of Parity Preferred Units shall in all cases
bear to each other the same ratio that accrued distributions
per Series F Preferred Unit and such other classes or series
of Parity Preferred Units (which shall not include any
accumulation in respect of unpaid distributions for prior
distribution periods if such class or series of Parity
Preferred Units do not have cumulative distribution rights)
bear to each other.
(v) No Further Rights. Holders of Series F Preferred Units
shall not be entitled to any distributions, whether payable in cash,
other property or otherwise, in excess of the full cumulative
distributions described herein.
(d) Liquidation Preference.
----------------------
(i) Payment of Liquidating Distributions. Subject to the
rights of holders of Parity Preferred Units with respect to rights
upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Partnership and subject to Partnership Interests
ranking senior to the Series F Preferred Units with respect to
rights upon any voluntary or involuntary liquidation, dissolution or
winding-up of the Partnership, the holders of Series F Preferred
Units shall be entitled to receive out of the assets of the
Partnership legally available for distribution or the proceeds
thereof, after payment or provision for debts and other liabilities
of the Partnership, but before any payment or distributions of the
assets shall be made to holders of any class or series of
Partnership Interest that ranks junior to the Series F Preferred
Units as to rights upon liquidation, dissolution or winding-up of
the Partnership, an amount equal to the sum of a liquidation
preference equal to their positive Capital Account balances
(including, without limitation, any accumulated and unpaid
distributions, whether or not declared, to the date of payment to
the extent not previously credited to such Capital Account
balances), determined after taking into account all Capital Account
adjustments for the Partnership taxable year during which the
liquidation occurs (other than those made as a result of the
liquidating distribution set forth in this 4.10(d)(i)). In the event
that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of
liquidating distributions to the holders of Series F Preferred Units
and any Parity Preferred Units as to rights upon liquidation,
dissolution or winding-up of the Partnership, all payments of
liquidating distributions on the Series F Preferred Units and such
Parity Preferred Units shall be made so that the payments on the
Series F Preferred Units and such Parity Preferred Units shall in
all cases bear to each other the same ratio that the respective
rights of the Series F Preferred Units and such other Parity
Preferred Units (which shall not include any accumulation in respect
of unpaid distributions for prior distribution periods if such
Parity Preferred Units do not have cumulative distribution rights)
upon liquidation, dissolution or winding-up of the Partnership bear
to each other.
(ii) Notice. Written notice of any such voluntary or
involuntary liquidation, dissolution or winding-up of the
Partnership, stating the payment date or dates when, and the place
or places where, the amounts distributable in such circumstances
shall be payable, shall be given by (i) fax and (ii) by first class
mail, postage pre-paid, not less than 30 and not more than 60 days
prior to the payment date stated therein, to each record holder of
the Series F Preferred Units at the respective addresses of such
holders as the same shall appear on the transfer records of the
Partnership.
(iii) No Further Rights. After payment of the full amount of
the liquidating distributions to which they are entitled, the
holders of Series F Preferred Units will have no right or claim to
any of the remaining assets of the Partnership.
(iv) Consolidation, Merger or Certain Other Transactions. The
voluntary sale, conveyance, lease, exchange or transfer (for cash,
shares of stock, securities or other consideration) of all or
substantially all of the property or assets of the General Partner
to, or the consolidation or merger or other business combination of
the Partnership with or into, any corporation, trust or other entity
(or of any corporation, trust or other entity with or into the
Partnership) shall not be deemed to constitute a liquidation,
dissolution or winding-up of the Partnership.
(e) Optional Redemption.
(i) Right of Optional Redemption. The Series F Preferred Units
may not be redeemed prior to the fifth anniversary of the issuance
date. On or after such date, the Partnership shall have the right to
redeem the Series F Preferred Units, in whole or in part, at any
time or from time to time, upon not less than 30 nor more than 60
days' written notice, at a redemption price, payable in cash, equal
to the Capital Account balance of the holder of Series F Preferred
Units (the "Series F Redemption Price"); provided, however, that no
redemption pursuant to this Section 4.10(e)(i) will be permitted if
the Series F Redemption Price does not equal or exceed the original
Capital Contribution of such holder plus the cumulative Series F
Priority Return, whether or not declared, to the redemption date to
the extent not previously distributed or distributed on the
redemption date pursuant to Section 4.10(c)(i). If fewer than all of
the outstanding Series F Preferred Units are to be redeemed, the
Series F Preferred Units to be redeemed shall be selected pro rata
(as nearly as practicable without creating fractional units).
(ii) Limitation on Redemption.
------------------------
(A) The Series F Redemption Price (other than the
portion thereof consisting of accumulated but unpaid
distributions) will be payable solely out of the sale proceeds
of capital stock of the General Partner, which will be
contributed by the General Partner to the Partnership as
additional capital contribution, or out of the sale of limited
partner interests in the Partnership and from no other source.
For purposes of the preceding sentence, "capital stock" means
any equity securities (including Common Stock and Preferred
Stock (as such terms are defined in the Articles of
Incorporation)), shares, participation or other ownership
interests (however designated) and any rights (other than debt
securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(B) The Partnership may not redeem fewer than all of the
outstanding Series F Preferred Units unless all accumulated
and unpaid distributions have been paid on all Series F
Preferred Units for all quarterly distribution periods
terminating on or prior to the date of redemption.
(iii) Procedures for Redemption.
-------------------------
(A) Notice of redemption will be (i) faxed, and (ii)
mailed by the Partnership, by certified mail, postage prepaid,
not less than 30 nor more than 60 days prior to the redemption
date, addressed to the respective holders of record of the
Series F Preferred Units at their respective addresses as they
appear on the records of the Partnership. No failure to give
or defect in such notice shall affect the validity of the
proceedings for the redemption of any Series F Preferred Units
except as to the holder to whom such notice was defective or
not given. In addition to any information required by law,
each such notice shall state: (i) the redemption date, (ii)
the Series F Redemption Price, (iii) the aggregate number of
Series F Preferred Units to be redeemed and if fewer than all
of the outstanding Series F Preferred Units are to be
redeemed, the number of Series F Preferred Units to be
redeemed held by such holder, which number shall equal such
holder's pro rata share (based on the percentage of the
aggregate number of outstanding Series F Preferred Units the
total number of Series F Preferred Units held by such holder
represents) of the aggregate number of Series F Preferred
Units to be redeemed, (iv) the place or places where such
Series F Preferred Units are to be surrendered for payment of
the Series F Redemption Price, (v) that distributions on the
Series F Preferred Units to be redeemed will cease to
accumulate on such redemption date and (vi) that payment of
the Series F Redemption Price will be made upon presentation
and surrender of such Series F Preferred Units.
(B) If the Partnership gives a notice of redemption in
respect of Series F Preferred Units (which notice will be
irrevocable) then, by 12:00 noon, New York City time, on the
redemption date, the Partnership will deposit irrevocably in
trust for the benefit of the Series F Preferred Units being
redeemed funds sufficient to pay the applicable Series F
Redemption Price and will give irrevocable instructions and
authority to pay such Series F Redemption Price to the holders
of the Series F Preferred Units upon surrender of the Series F
Preferred Units by such holders at the place designated in the
notice of redemption. If the Series F Preferred Units are
evidenced by a certificate and if fewer than all Series F
Preferred Units evidenced by any certificate are being
redeemed, a new certificate shall be issued upon surrender of
the certificate evidencing all Series F Preferred Units,
evidencing the unredeemed Series F Preferred Units without
cost to the holder thereof. On and after the date of
redemption, distributions will cease to accumulate on the
Series F Preferred Units or portions thereof called for
redemption, unless the Partnership defaults in the payment
thereof. If any date fixed for redemption of Series F
Preferred Units is not a Business Day, then payment of the
Series F Redemption Price payable on such date will be made on
the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay)
except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as
if made on such date fixed for redemption. If payment of the
Series F Redemption Price is improperly withheld or refused
and not paid by the Partnership, distributions on such Series
F Preferred Units will continue to accumulate from the
original redemption date to the date of payment, in which case
the actual payment date will be considered the date fixed for
redemption for purposes of calculating the applicable Series F
Redemption Price.
(f) Voting Rights.
-------------
(i) General. Holders of the Series F Preferred Units will not
have any voting rights or right to consent to any matter requiring
the consent or approval of the Limited Partners, except as otherwise
expressly set forth in the Partnership Agreement and except as set
forth below.
(ii) Certain Voting Rights. So long as any Series F Preferred
Units remain outstanding, the Partnership shall not, without the
affirmative vote of the holders of at least two-thirds of the Series
F Preferred Units outstanding at the time (i) authorize or create,
or increase the authorized or issued amount of, any class or series
of Partnership Interests ranking prior to the Series F Preferred
Units with respect to payment of distributions or rights upon
liquidation, dissolution or winding-up or create, authorize or issue
any obligations or security convertible into or evidencing the right
to purchase any such Partnership Interests, (ii) authorize or
create, or increase the authorized or issued amount of any Parity
Preferred Units or reclassify any Partnership Interest of the
Partnership into any such Partnership Interest or create, authorize
or issue any obligations or security convertible into or evidencing
the right to purchase any such Partnership Interests but only to the
extent such Parity Preferred Units are issued to an affiliate of the
Partnership, other than to (1) Security Capital U.S. Realty,
Security Capital Holdings, S.A. or their Affiliates (if issued upon
arm's length terms in the good faith determination of the board of
directors of the General Partner), or (2) the General Partner to the
extent the issuance of such interests was to allow the General
Partner to issue corresponding preferred stock to persons who are
not affiliates of the Partnership; or (iii) (A) consolidate, merge
into or with, or convey, transfer or lease its assets substantially
as an entirety to, any corporation or other entity or (B) amend,
alter or repeal the provisions of the Partnership Agreement, whether
by merger, consolidation or otherwise, in a manner that would
materially and adversely affect the powers, special rights,
preferences, privileges or voting power of the Series F Preferred
Units or the holders thereof; provided, however, that with respect
to a merger, consolidation or a sale or lease of all of the
Partnership's assets as an entirety, so long as (a) the Partnership
is the surviving entity and the Series F Preferred Units remain
outstanding with the terms thereof unchanged, or (b) the resulting,
surviving or transferee entity is a partnership, limited liability
company or other pass-through entity organized under the laws of any
state and substitutes for the Series F Preferred Units other
interests in such entity having substantially the same terms and
rights as the Series F Preferred Units, including with respect to
distributions, voting rights and rights upon liquidation,
dissolution or winding-up, then the occurrence of any such event
shall not be deemed to materially and adversely affect such rights,
privileges or voting powers of the holders of the Series F Preferred
Units and no vote of the Series F Preferred Units shall be required
in such case; and provided further that any increase in the amount
of Partnership Interests or the creation or issuance of any other
class or series of Partnership Interests, in each case ranking (a)
junior to the Series F Preferred Units with respect to payment of
distributions and the distribution of assets upon liquidation,
dissolution or winding-up, or (b) on a parity to the Series F
Preferred Units with respect to payment of distributions or the
distribution of assets upon liquidation, dissolution or winding-up
to the extent such Partnership Interest are not issued to an
affiliate of the Partnership, other than (A) Security Capital U.S.
Realty, Security Capital Holdings, S.A. or their Affiliates (if
issued upon arm's length terms in the good faith determination of
the board of directors of the General Partner), or (B) the General
Partner to the extent the issuance of such interests was to allow
the General Partner to issue corresponding preferred stock to
persons who are not affiliates of the Partnership, shall not be
deemed to materially and adversely affect such rights, preferences,
privileges or voting powers and no vote of the Series F Preferred
Units shall be required in such case.
(g) Exchange Rights.
---------------
(i) Right to Exchange.
-----------------
(A) Series F Preferred Units will be exchangeable in
whole or in part at anytime on or after the tenth anniversary
of the date of issuance, at the option of the holders thereof,
for authorized but previously unissued shares of 8.75% Series
F Cumulative Redeemable Preferred Stock of the General Partner
(the "Series F Preferred Stock") at an exchange rate of one
share of Series F Preferred Stock for one Series F Preferred
Unit, subject to adjustment as described below (the "Series F
Exchange Price"), provided that the Series F Preferred Units
will become exchangeable at any time, in whole or in part, at
the option of the holders of Series F Preferred Units for
Series F Preferred Stock if (y) at any time full distributions
shall not have been made on the applicable Series F Preferred
Unit Distribution Payment Date on any Series F Preferred Unit
with respect to six (6) prior quarterly distribution periods,
whether or not consecutive, provided, however, that a
distribution in respect of Series F Preferred Units shall be
considered timely made if made within two (2) Business Days
after the applicable Series F Preferred Unit Distribution
Payment Date if at the time of such late payment there shall
not be any prior quarterly distribution periods in respect of
which full distributions were made more than two (2) Business
Days after the applicable Series F Preferred Unit Distribution
Payment Date or (z) upon receipt by a holder or holders of
Series F Preferred Units of (A) notice from the General
Partner that the General Partner or a Subsidiary of the
General Partner has taken the position that the Partnership
is, or upon the occurrence of a defined event in the immediate
future will be, a PTP and (B) an opinion rendered by an
outside nationally recognized independent counsel familiar
with such matters addressed to a holder or holders of Series F
Preferred Units, that the Partnership is or likely is, or upon
the occurrence of a defined event in the immediate future will
be or likely will be, a PTP. In addition, the Series F
Preferred Units may be exchanged for Series F Preferred Stock,
in whole or in part, at the option of any holder prior to the
tenth anniversary of the issuance date and after the third
anniversary thereof if such holder of a Series F Preferred
Unit shall deliver to the General Partner either (i) a private
ruling letter addressed to such holder of Series F Preferred
Units or (ii) an opinion of independent counsel reasonably
acceptable to the General Partner based on the enactment of
temporary or final Treasury Regulations or the publication of
a Revenue Ruling, in either case to the effect that an
exchange of the Series F Preferred Units at such earlier time
would not cause the Series F Preferred Units to be considered
"stock and securities" within the meaning of section 351(e) of
the Code for purposes of determining whether the holder of
such Series F Preferred Units is an "investment company" under
section 721(b) of the Code if an exchange is permitted at such
earlier date. Furthermore, the Series F Preferred Units may be
exchanged in whole but not in part by any holder thereof which
is a real estate investment trust within the meaning of
Sections 856 through 859 of the Code for Series F Preferred
Stock (but only if the exchange in whole may be accomplished
consistently with the ownership limitations set forth under
Article 5 of the Articles of Incorporation (taking into
account exceptions thereto) if at any time (i) the Partnership
reasonably determines that the assets and income of the
Partnership for a taxable year after 2001 would not satisfy
the income and assets tests of Section 856 of the Code for
such taxable year if the Partnership were a real estate
investment trust within the meaning of the Code or (ii) any
such holder of Series F Preferred Units shall deliver to the
Partnership and the General Partner an opinion of independent
counsel reasonably acceptable to the General Partner to the
effect that, based on the assets and income of the Partnership
for a taxable year after 2001, the Partnership would not
satisfy the income and assets tests of Section 856 of the Code
for such taxable year if the Partnership were a real estate
investment trust within the meaning of the Code and that such
failure would create a meaningful risk that a holder of the
Series F Preferred Units would fail to maintain qualification
as a real estate investment trust. Furthermore, the Series F
Preferred Units may be exchanged in whole or in part for
Series F Preferred Stock at any time after the date hereof, if
both (1) the holder thereof concludes based on results or
projected results that there exits (in the reasonable judgment
of the holder) an imminent and substantial risk that the
holder's interest in the Partnership does or will represent
more than 19.5% of the total profits or capital interests in
the Partnership (determined in accordance with Treasury
Regulations Section 1.731-2(e)(4)) for a taxable year, and (2)
the holder delivers to the General Partner an opinion of
nationally recognized independent counsel to the effect that
there is an imminent and substantial risk that the holder's
interest in the Partnership does or will represent more than
19.5% of the total profits or capital interests in the
Partnership (determined in accordance with Treasury
Regulations Section 1.731-2(e)(4)) for a taxable year.
(B) Notwithstanding anything to the contrary set forth
in Section 4.10(g)(i)(A), if an Series F Exchange Notice (as
defined herein) has been delivered to the General Partner,
then the General Partner may, at its option, elect to redeem
or cause the Partnership to redeem all or a portion of the
outstanding Series F Preferred Units for cash in an amount
equal to the original Capital Contribution per Series F
Preferred Unit and all accrued and unpaid distributions
thereon to the date of redemption. The General Partner may
exercise its option to redeem the Series F Preferred Units for
cash pursuant to this Section 4.10(g)(i)(B) by giving each
holder of record of Series F Preferred Units notice of its
election to redeem for cash, within five (5) Business Days
after receipt of the Series F Exchange Notice, by (i) fax, and
(ii) registered mail, postage paid, at the address of each
holder as it may appear on the records of the Partnership
stating (i) the redemption date, which shall be no later than
sixty (60) days following the receipt of the Series F Exchange
Notice, (ii) the redemption price, (iii) the place or places
where the Series F Preferred Units are to be surrendered for
payment of the redemption price, (iv) that distributions on
the Series F Preferred Units will cease to accrue on such
redemption date; (v) that payment of the redemption price will
be made upon presentation and surrender of the Series F
Preferred Units and (vi) the aggregate number of Series F
Preferred Units to be redeemed, and if fewer than all of the
outstanding Series F Preferred Units are to be redeemed, the
number of Series F Preferred Units to be redeemed held by such
holder, which number shall equal such holder's pro-rata share
(based on the percentage of the aggregate number of
outstanding Series F Preferred Units the total number of
Series F Preferred Units held by such holder represents) of
the aggregate number of Series F Preferred Units being
redeemed.
(C) Upon the occurrence of an event giving rise to
exchange rights pursuant to Section 4.10(g)(i)(A), in the
event an exchange of all or a portion of Series F Preferred
Units pursuant to Section 4.10(g)(i)(A) would violate the
provisions on ownership limitation of the General Partner set
forth in Article 5 of the Articles of Incorporation, the
General Partner shall give written notice thereof to each
holder of record of Series F Preferred Units, within five (5)
Business Days following receipt of the Series F Exchange
Notice, by (i) fax, and (ii) registered mail, postage prepaid,
at the address of each such holder set forth in the records of
the Partnership. In such event, each holder of Series F
Preferred Units shall be entitled to exchange, pursuant to the
provision of Section 4.10(g)(ii) a number of Series F
Preferred Units which would comply with the provisions on the
ownership limitation of the General Partner set forth in such
Article 5 of the Articles of Incorporation and any Series F
Preferred Units not so exchanged (the "Series F Excess Units")
shall be redeemed by the Partnership for cash in an amount
equal to the original Capital Contribution per Series F Excess
Unit, plus any accrued and unpaid distributions thereon,
whether or not declared, to the date of redemption. The
written notice of the General Partner shall state (i) the
number of Series F Excess Units held by such holder, (ii) the
redemption price of the Series F Excess Units, (iii) the date
on which such Series F Excess Units shall be redeemed, which
date shall be no later than sixty (60) days following the
receipt of the Series F Exchange Notice, (iv) the place or
places where such Series F Excess Units are to be surrendered
for payment of the Series F Redemption Price, (iv) that
distributions on the Series F Excess Units will cease to
accrue on such redemption date, and (v) that payment of the
redemption price will be made upon presentation and surrender
of such Series F Excess Units. In the event an exchange would
result in Series F Excess Units, as a condition to such
exchange, each holder of such units agrees to provide
representations and covenants reasonably requested by the
General Partner relating to (i) the widely held nature of the
interests in such holder, sufficient to assure the General
Partner that the holder's ownership of stock of the General
Partner (without regard to the limits described above) will
not cause any individual to own in excess of 9.8% of the stock
of the General Partner; and (ii) to the extent such holder can
so represent and covenant without obtaining information from
its owners, the holder's ownership of tenants of the
Partnership and its affiliates.
(D) The redemption of Series F Preferred Units described
in Section 4.10(g)(i)(B) and (C) shall be subject to the
provisions of Section 4.10(e)(ii)(A) and Section
4.10(e)(iii)(B); provided, however, that for purposes hereof
the term "Redemption Price" in Sections 4.10(e)(ii)(A) and
4.10(e)(iii)(B) shall be read to mean the original Capital
Contribution per Series F Preferred Unit being redeemed plus
all accrued and unpaid distributions to the redemption date.
(ii) Procedure for Exchange.
----------------------
(A) Any exchange shall be exercised pursuant to a notice
of exchange (the "Series F Exchange Notice") delivered to the
General Partner by the holder who is exercising such exchange
right, by (i) fax and (ii) by certified mail postage prepaid.
Upon request of the General Partner, such holder delivering
the Series F Exchange Notice shall provide to the General
Partner in writing such information as the General Partner may
reasonably request to determine whether any portion of the
exchange by the delivering holder will result in the violation
of the restrictions of Article 5 of the Articles of
Incorporation, including the Ownership Limit and the Related
Tenant Limit. The exchange of Series F Preferred Units, or a
specified portion thereof, may be effected after the fifth
(5th) Business Days following receipt by the General Partner
of the Series F Exchange Notice and such requested information
by delivering certificates, if any, representing such Series F
Preferred Units to be exchanged together with, if applicable,
written notice of exchange and a proper assignment of such
Series F Preferred Units to the office of the General Partner
maintained for such purpose. Currently, such office is ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
Each exchange will be deemed to have been effected immediately
prior to the close of business on the date on which such
Series F Preferred Units to be exchanged (together with all
required documentation) shall have been surrendered and notice
shall have been received by the General Partner as aforesaid
and the Series F Exchange Price shall have been paid. Any
Series F Preferred Stock issued pursuant to this Section
4.10(g) shall be delivered as shares which are duly
authorized, validly issued, fully paid and nonassessable, free
of pledge, lien, encumbrance or restriction other than those
provided in the Articles of Incorporation, the Bylaws of the
General Partner, the Securities Act and relevant state
securities or blue sky laws.
(B) In the event of an exchange of Series F Preferred
Units for shares of Series F Preferred Stock, an amount equal
to the accrued and unpaid distributions which are not paid
pursuant to Section 4(a) hereof, whether or not declared, to
the date of exchange on any Series F Preferred Units tendered
for exchange shall (i) accrue and be payable by the General
Partner from and after the date of exchange on the shares of
the Series F Preferred Stock into which such Series F
Preferred Units are exchanged, and (ii) continue to accrue on
such Series F Preferred Units, which shall remain outstanding
following such exchange, with the General Partner as the
holder of such Series F Preferred Units. Notwithstanding
anything to the contrary set forth herein, in no event shall a
holder of a Series F Preferred Unit that was validly exchanged
into Series F Preferred Stock pursuant to this section (other
than the General Partner now holding such Series F Preferred
Unit), receive a distribution out of Available Cash or Capital
Transaction Proceeds of the Partnership with respect to any
Series F Preferred Units so exchanged.
(C) Fractional shares of Series F Preferred Stock are
not to be issued upon exchange but, in lieu thereof, the
General Partner will pay a cash adjustment based upon the fair
market value of the Series F Preferred Stock on the day prior
to the exchange date as determined in good faith by the Board
of Directors of the General Partner.
(iii) Adjustment of Exchange Price.
----------------------------
(A) The Series F Exchange Price is subject to adjustment
upon certain events, including, (i) subdivisions, combinations
and reclassification of the Series F Preferred Stock, and (ii)
distributions to all holders of Series F Preferred Stock of
evidences of indebtedness of the General Partner or assets
(including securities, but excluding dividends and
distributions paid in cash out of equity applicable to Series
F Preferred Stock).
(B) In case the General Partner shall be a party to any
transaction (including, without limitation, a merger,
consolidation, statutory share exchange, tender offer for all
or substantially all of the General Partner's capital stock or
sale of all or substantially all of the General Partner's
assets), in each case as a result of which the Series F
Preferred Stock will be converted into the right to receive
shares of capital stock, other securities or other property
(including cash or any combination thereof), each Series F
Preferred Unit will thereafter be exchangeable into the kind
and amount of shares of capital stock and other securities and
property receivable (including cash or any combination
thereof) upon the consummation of such transaction by a holder
of that number of shares of Series F Preferred Stock or
fraction thereof into which one Series F Preferred Unit was
exchangeable immediately prior to such transaction. The
General Partner may not become a party to any such transaction
unless the terms thereof are consistent with the foregoing.
(C) So long as a Preferred Partner or any of its
permitted successors or assigns holds any Series F Preferred
Units as the case may be, the General Partner shall not,
without the affirmative vote of the holders of at least
two-thirds of the Series F Preferred Units (excluding any
Series F Preferred Units surrendered to the General Partner in
exchange for Series F Preferred Stock) and Series F Preferred
Stock (voting together as a class on the basis of number of
shares into which Series F Preferred Units are exchangeable)
outstanding at the time: (a) designate or create, or increase
the authorized or issued amount of, any class or series of
shares ranking senior to the Series F Preferred Stock with
respect to the payment of distributions or rights upon
liquidation, dissolution or winding-up or reclassify any
authorized shares of the General Partner into any such shares,
or create, authorize or issue any obligations or securities
convertible into or evidencing the right to purchase any such
shares; (b) designate or create, or increase the authorized or
issued amount of, any Parity Preferred Stock or reclassify any
authorized shares of the General Partner into any such shares,
or create, authorize or issue any obligations or security
convertible into or evidencing the right to purchase any such
shares, but only to the extent that such Parity Preferred
Stock are issued to an Affiliate of the General Partner other
than (A) Security Capital U.S. Realty, Security Capital
Holdings, S.A. or their affiliates (if issued on arm's length
terms in the good faith determination of the board of
directors of the General Partner), or (B) the General Partner
to the extent the issuance of such interests was to allow the
General Partner to issue corresponding preferred stock in the
same transaction to persons who are not affiliates of the
Partnership; (c) amend, alter or repeal the provisions of the
Charter or bylaws of the General Partner, whether by merger,
consolidation or otherwise, that would materially and
adversely affect the powers, special rights, preferences,
privileges or voting power of the Series F Preferred Stock or
the holders thereof; provided, however, that any increase in
the amount of authorized Preferred Stock or the creation or
issuance of any other series or class of Preferred Stock, or
any increase in the amount of authorized shares of each class
or series, in each case ranking either (1) junior to the
Series F Preferred Stock with respect to the payment of
distributions or the distribution of assets upon liquidation,
dissolution or winding-up, or (2) on a parity with the Series
F Preferred Stock with respect to the payment of distributions
or the distribution of assets upon liquidation, dissolution or
winding-up to the extent such Preferred Stock are not issued
to an Affiliate of the General Partner other than (A) Security
Capital U.S. Realty, Security Capital Holdings, S.A. or their
affiliates if issued on arm's length terms in the good faith
determination of the board of directors of the General
Partner, or (B) General Partner to the extent the issuance of
such interests was to allow the General Partner to issue
corresponding preferred stock to persons who are not
affiliates of the Partnership, shall not be deemed to
materially and adversely affect such rights, preferences,
privileges or voting powers.
(h) No Conversion Rights. The holders of the Series F Preferred
Units shall not have any rights to convert such shares into shares of any
other class or series of stock or into any other securities of, or
interest in, the Partnership.
(i) No Sinking Fund. No sinking fund shall be established for the retirement
or redemption of Series F Preferred Units."
Section 5. Article 7 - Management and Operating of Business. Section
7.1(h) is hereby amended by inserting the words " and Series F Priority Return
and" before the words "Priority Distribution Amount" therein.
Section 6. Article 8 - Rights and Obligations of Limited Partner. Section
8.4 is hereby amended by inserting the words "and Section 4.10," after the words
"Section 4.8".
Section 7. Article 11 - Transfers and Withdrawals.
(a) Section 11.2(b) is hereby amended by inserting the words "and
Section 4.10(f)" after the words "4.8(f)" in the first sentence thereof.
(b) The Series F Preferred Partner may, subject to Sections
11.3(b)-(n), assign its Units to any Person, and any such assignee shall
be admitted as a Substituted Limited Partner.
(c) The following is inserted as a new Section 11.3(n):
"(k) Transfers by Series F Preferred Partner. In addition to
the other restrictions on transfer set forth in this Article 11,
which apply to Series F Preferred Units, no transfer of the Series F
Preferred Units may be made without the consent of the General
Partner, which consent may be given or withheld in its sole and
absolute discretion, if such transfer would result in more than four
partners holding all outstanding Series F Preferred Units within the
meaning of Regulation Section 1.7704-1(h)(3) "; provided, however,
that the General Partner shall not unreasonably withhold its consent
to a waiver of the limitations set forth in this Section 11.3(n) if
the Partnership is (1) relying on a provision other than Treasury
Regulation Section 1.7704-1(h) to avoid classification of
Partnership as a PTP or (2) a PTP."
Section 8. Article 13 - Dissolution and Liquidation.
(a) Clause (iii) of Section 13.2(a) is hereby deleted and the
following inserted in lieu thereof:
"(iii) Third, one hundred percent (100%) to the Parity Preferred
Units in accordance with Sections 4.5(d), 4.6(d), 4.7(d), 4.8(d),
4.9(d) and 4.10(d)."
(b) The words "and Section 4.10 with respect to the Series F
Preferred Units" is hereby inserted after the words "Section 4.5 with
respect to the Series A Preferred Units" in Section 13.6.
Section 9. Article 14 - Amendment of Partnership Agreement; Meetings.
Sections 14.1(a), 14.1(c) and 14.1(d) are hereby amended by inserting the words
"and 4.10(f)(ii)" after each reference to "4.5(f)(ii)" therein.
Section 10. Miscellaneous.
-------------
(a) Notwithstanding anything to the contrary contained in Section
8.6 of the Partnership Agreement, in no event shall the rights of the
holders of the Series F Preferred Units set forth in Section 4 of this
Amendment be subordinate to the Redemption Rights set forth in Section 8.6
of the Partnership Agreement.
(b) The Partnership and the General Partner represent and warrant
that the issuance of the Series F Preferred Units pursuant to this
Amendment is permitted pursuant to Section 4.2(b)(i).
(c) The Partnership and General Partner (i) represent and warrant
that, except as disclosed on Schedule 1 attached hereto, no Redemption
Rights contemplated in Section 8.6 require the Partnership or General
Partner to pay cash in lieu of the Share Amount in exchange for Units
(other than at the election of the Partnership or General Partner) and
(ii) covenant and agree not to grant, without the consent of the Series A
Preferred Partners and Series F Preferred Partner, any Redemption Rights
requiring the Partnership or General Partner to pay cash in lieu of the
Share Amount in exchange for Units (other than at the election of the
Partnership or General Partner) except (i) redemption rights assumed by
Partnership or General Partner in connection with the acquisition of an
existing operating partnership and (ii) redemption rights as to less than
5% of the Common Units arising from a tender offer by the Partnership
intended to reduce the number of partners of the Partnership, unless (i)
the cash used to effectuate any such cash redemption is raised from the
issuance of Common Stock of the General Partner issued for such purpose or
(ii) the Partnership shall allow the holders of the Series A Preferred
Units and Series F Preferred Units to redeem their Units for the Series A
Redemption Price and Series F Redemption Price, respectively, immediately
prior to the time of such other redemption.
Section 11. Fourth Amended and Restated Agreement of Limited Partnership.
The form of Fourth Amended and Restated Agreement of Limited Partnership (the
"Restated Form") attached to the Partnership Agreement is hereby amended to
conform to the amendments set forth in this Amendment, all of which shall be
deemed incorporated in said Fourth Amended and Restated Agreement of Limited
Partnership (the "Restated Agreement") upon the effectiveness thereof (with such
conforming changes as may be necessary to give substantive effect thereto).
Additionally, the Restated Agreement Form and, upon its effectiveness, the
Restated Agreement are hereby amended as follows:
(a) Section 4.2(b)(i)(A) is hereby amended by inserting the words
"and Section 4.10(f)(ii)" after the words "subject to Sections 4.5(f)(ii)
and 4.8(f)(ii)," at the beginning of clause (ii);
(b) Section 4.2(b)(i)(B) is hereby amended by inserting the words
"and Section 4.10(f)(ii)" after the words "and Sections 4.5(f)(ii) and
4.8(f)(ii) after the reference to "Section 14.1(g)(ii)" in clause (ii);
and
(c) Section 14.1(g) is hereby amended by inserting the following at the end
thereof:
"Nothing contained in Section 14(g) shall be deemed to modify or
affect the rights, preferences and priorities of the Series F
Preferred Partner as to distributions and allocations."
Section 12. Reaffirmation. Except as modified herein, all terms and
conditions of the Partnership Agreement shall remain in full force and effect,
which terms and conditions the General Partner hereby ratifies and affirms.
(SPACE LEFT INTENTIONALLY BLANK)
IN WITNESS WHEREOF, this Amendment has been executed as of the date first
above written.
GENERAL PARTNER
REGENCY REALTY CORPORATION
By:
Name:
Title:
LIMITED PARTNER
MONTEBELLO REALTY CORP.
By:
Name:
Title:
SCHEDULE 1
None.