EXHIBIT 10(c)
AMENDED AND RESTATED REDEMPTION AGREEMENT
(Midland)
THIS AMENDED AND RESTATED REDEMPTION AGREEMENT (the "Agreement"),
executed as of the 5th day of March 1998, is made effective as of the 12th
day of January, 1998, among REGENCY CENTERS, L.P., a Delaware limited
partnership (the "Partnership"), REGENCY REALTY CORPORATION, a Florida
corporation and the general partner of the Partnership ("Regency" or the
"General Partner"), the persons listed on the signature pages hereto, and
their permitted transferees.
Background
Pursuant to the terms of the Contribution Agreement (as defined
below), certain properties and assets will be contributed to the
Partnership in exchange for units of limited partnership interest in the
Partnership (the "Units"). Regency has agreed, pursuant to the
Contribution Agreement, that the Units issued to the Limited Partners will
be redeemable for Common Stock of Regency.
The parties wish to amend and restate the Redemption Agreement that
was signed on January 12, 1998 in order to (i) add additional Contributors
(as defined herein) and (ii) to amend the notice provisions hereof to
provide for notice under certain circumstances to the Limited Partners of
a sale event that will trigger income tax liability.
Accordingly, the parties agree as follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
Additional Units has the meaning given to such term in the
Contribution Agreement.
Affiliate means any person controlling, controlled by or under
common control with the person in question.
Business Day has the meaning given to that term in the
Partnership Agreement.
Cash Amount means an amount of cash arrived at by multiplying
(i) the number of Units that are the subject of a Notice of Redemption
times (ii) the Unit Adjustment Factor times (iii) the Value on the
Valuation Date of a Share.
Common Stock means the voting common stock, $0.01 par value, of
Regency.
Contribution Agreement means the Contribution Agreement of even
date herewith to which Regency, Midland Development Group, Inc. and others
are parties, as it may be amended from time to time.
First Closing has the meaning given to such term in the
Contribution Agreement.
First Closing Cash Amount means an amount in cash for each Unit
being redeemed equal to (i) $26.5813 times (ii) the Unit Adjustment
Factor.
First Closing Redemption means a redemption, effective at the
First Closing, involving the redemption of Units issued at the First
Closing immediately following such issuance, in exchange for the First
Closing Cash Amount.
Limited Partners means (i) the Contributors (as defined in the
Contribution Agreement and also including the entities shown on the
signature pages hereto as Intervening Contributors), and (ii) the Unit
Recipients (as defined in the Contribution Agreement) to whom the
Contributors will distribute Units, whose names are set forth on Schedule
A to this Agreement, and their Permitted Transferees. A Limited Partner
shall cease to be a party to this Agreement if it no longer holds any
Units and has no right to receive Additional Units.
Mandatory Subsequent Closing Redemption means a mandatory
redemption pursuant to Section 2.3 of Additional Units issued to a Limited
Partner who has exercised a First Closing Redemption.
Notice of Redemption means the Notice of Redemption and Investor
Questionnaire substantially in the form of Exhibit A to this Agreement, as
it may be amended from time to time by the General Partner effective upon
written notice to the Limited Partners.
Partnership means Regency Centers, L.P., a Delaware limited
partnership.
Partnership Agreement means the Agreement of Limited Partnership
of the Partnership, as it may be amended from time to time.
Permitted Transferees means as to a Limited Partner (i) any
Affiliate of the Limited Partner, (ii) in the case of a Limited Partner
who is a natural person, such natural person's spouse, parents,
descendants, nephews, nieces, brothers and sisters, and one or more trusts
for the benefit of any of the foregoing, (iii) in the case of a Limited
Partner that is a trust, any beneficiary of the trust, or if the Limited
Partner is another form of entity, the direct or indirect equity owners of
the Limited Partner, and (iv) in the case of Units that are not Pledged
Units, a lender to which such Units are pledged to secure a bona fide
obligation of the Limited Partner and any transferee who takes title in
accordance with the rights of such lender under the instruments evidencing
such obligation.
Pledged Units has the meaning set forth in Section 2.6.
Redeeming Partner means a Limited Partner who duly exercises a
Redemption Right pursuant to this Agreement.
Redemption Amount means the Share Amount or, as determined by
the General Partner in its sole and absolute discretion, the Cash Amount.
Redemption Right has the meaning set forth in Section 2.1
hereof.
Regency means Regency Realty Corporation, a Florida corporation,
together with any successor.
Securities Act means the Securities Act of 1933, as amended.
Share Amount means a number of Shares arrived at by multiplying
(i) the number of Units that are the subject of a Notice of Redemption
times (ii) the Unit Adjustment Factor.
Shares means (i) the Common Stock of Regency, and (ii) any
securities issuable with respect to Shares as a result of the application
of Section 4.
Specified Redemption Date means the later of (i) the close of
business, Eastern Time, on the date specified by the Redeeming Partner in
such Partner's Notice of Redemption, or (ii) the close of business,
Eastern Time, on the first Business Day after the date in clause (i) if
such date is not a Business Day, or (iii) the close of business, Eastern
Time, on the tenth Business Day after receipt by the General Partner of a
Notice of Redemption.
Subsequent Closing has the meaning given to such term in the
Contribution Agreement.
Unit means a Class 2 unit of interest in the Partnership
acquired by a Limited Partner pursuant to the Contribution Agreement, and
includes any Additional Unit.
Unit Adjustment Factor means initially 1.0; provided that, in
order to prevent dilution or enlargement of distribution rights, in the
event that Regency (i) declares or pays a dividend on its outstanding
Common Stock in Common Stock or makes a distribution to all holders of its
outstanding Common Stock in Common Stock, (ii) subdivides its outstanding
Common Stock, or (iii) combines its outstanding Common Stock into a
smaller number of shares, the Unit Adjustment Factor shall be adjusted by
multiplying the Unit Adjustment Factor by a fraction, the numerator of
which shall be the number of Shares issued and outstanding on the record
date (assuming for such purposes that such dividend, distribution,
subdivision or combination has occurred as of such time), and the
denominator of which shall be the actual number of Shares (determined
without the above assumption) issued and outstanding on the record date
for such dividend, distribution, subdivision or combination. Any
adjustment to the Unit Adjustment Factor shall become effective
immediately after the effective date of such event retroactive to the
record date, if any, for such event.
Value means, with respect to a Share, the average of the daily
market price of the Common Stock for the ten (10) consecutive trading days
immediately preceding the Valuation Date. The market price for each such
trading day shall be: (i) if the Common Stock is listed or admitted to
trading on any securities exchange or the Nasdaq National Market, the
closing price, regular way, on such day, or if no such sale takes place on
such day, the average of the closing bid and asked prices on such day,
(ii) if the Common Stock is not listed or admitted to trading on any
securities exchange or the Nasdaq National Market, the last reported sale
price on such day or, if no sale takes place on such day, the average of
the closing bid and asked prices on such day, as reported by a reliable
quotation source designated by Regency, or (iii) if the Common Stock is
not listed or admitted to trading on any securities exchange or the Nasdaq
National Market and no such last reported sale price or closing bid and
asked prices are available, the average of the reported high bid and low
asked prices on such day, as reported by a reliable quotation source
designated by Regency, or if there shall be no bid and asked prices on
such day, the average of the high bid and low asked prices, as so
reported, on the most recent day (not more than 10 days prior to the date
in question) for which prices have been so reported; provided, that if
there are no bid and asked prices reported during the 10 days prior to the
date in question, the Value of the Common Stock shall be determined by
Regency's board of directors acting in good faith on the basis of such
quotations and other information as it considers, in its reasonable
judgment, appropriate.
Valuation Date means, except as provided in Section 2.3 with
respect to a Mandatory Subsequent Closing Redemption, the date of receipt
by the General Partner of a Notice of Redemption or, if such date is not a
Business Day, the first Business Day thereafter.
Windfall Distribution Amount has the meaning given to such term
in the Contribution Agreement.
2. Redemption of Units.
2.1. Exercise; Subordination to Original Limited Partners.
Subject to the provisions of this Agreement and to the redemption
rights set forth in the Partnership Agreement of the Original Limited
Partners (including the holders of Class A Units) (as those terms are
defined in the Partnership Agreement), each Limited Partner shall
have the right (the "Redemption Right") to require the Partnership to
redeem any Unit held by such Limited Partner (the "Redeeming
Partner"). A Redeeming Partner may not exercise the Redemption Right
for less than 1,000 Units or, if such Redeeming Partner holds less
than 1,000 Units, all of the Units held by such Redeeming Partner.
If on any Specified Redemption Date it is impossible to satisfy the
Redemption Rights of Limited Partners exercising Redemption Rights
pursuant to this Agreement and the rights of the Original Limited
Partners exercising redemption rights pursuant to the Partnership
Agreement (e.g., because payment of the Cash Amount would violate
applicable law and payment of the Share Amount would violate the REIT
transfer restrictions in the Company's Articles of Incorporation), in
such event the Original Limited Partnership or Class A Units
submitted for redemption by the Original Limited Partners shall be
redeemed first, before the Units submitted for redemption by the
Limited Partners shall be redeemed. Regency covenants that it will
not amend its Articles of Incorporation in a manner that would
adversely affect the Redemption Rights of the Limited Partners except
where the amendment is for the purpose of preserving the Company's
status as a REIT or a domestically controlled REIT.
2.1.1. First Closing Redemption. A Limited Partner who
has elected to exercise the Redemption Right at the First Closing, by
so electing at least seven (7) Business Days prior to the First
Closing on election forms distributed by Midland Development Group,
Inc., its Affiliates and Regency, shall be entitled to receive at the
First Closing the First Closing Cash Amount for each Unit as to which
such Redeeming Partner has elected to make a First Closing
Redemption, plus the applicable portion of any Windfall Distribution
Amount as provided in Section 2.2.3. A Limited Partner who fails to
submit such election forms or who fails to affirmatively specify on
such election forms that he does not wish to exercise the Redemption
Right as to all or any portion of his Units at the First Closing
shall be deemed to have exercised the Redemption Right at the First
Closing with respect to all his Units. In addition, even though a
Limited Partner has affirmatively elected not to exercise the
Redemption Right at the First Closing, in the event that the closing
price of the Common Stock on the New York Stock Exchange is less than
$24 per Share on the Business Day immediately preceding the date of
the First Closing, each such Limited Partner shall have the right, by
telecopied written notice delivered to the General Partner (the
receipt of which shall be confirmed by telephone) on the date of the
First Closing, to elect to immediately redeem all or any Units issued
to such Limited Partner at the First Closing for the First Closing
Cash Amount, plus the applicable portion of any Windfall Distribution
Amount as provided in Section 2.2.3, which shall be payable no later
than seven (7) Business Days after the First Closing. The
Contribution Agreement contemplates that Units will be issued at the
First Closing directly to the Unit Recipients (as defined in the
Contribution Agreement) listed on Schedule A, rather than to the
Contributors (as defined in the Contribution Agreement) who are
parties hereto for distribution in turn to the Unit Recipients.
Accordingly, it is contemplated that such Unit Recipients, rather
than the Contributors, will have the right to make the elections set
forth in this section, and all references herein to the Limited
Partners means the Unit Recipients rather than the Contributors.
2.1.2. Other Redemptions. A Redemption Right other than
pursuant to a First Closing Redemption shall be exercised pursuant to
a Notice of Redemption delivered to the General Partner by the
Redeeming Partner. Such redemption shall occur on the Specified
Redemption Date. A Redeeming Partner may exercise a Redemption Right
any time and any number of times.
2.2. Payment.
2.2.1. First Closing Redemption. If a Limited Partner
has duly elected (or been deemed to have elected) to make a First
Closing Redemption with respect to all or any portion of the Units
issuable to the Limited Partner at the First Closing, Regency, and
not the Partnership, shall be required to pay the First Closing Cash
Amount at the First Closing for each Unit that is the subject of such
First Closing Redemption, plus the applicable portion of any Windfall
Distribution Amount as provided in Section 2.2.3 (or on the date
specified in Section 2.1.1 in the event of a First Closing Redemption
duly made on the date of the First Closing by reason of the closing
price of the Common Stock being less than $24 per Share on the
preceding Business Day). Regency, and not the Partnership, shall be
required to pay such redemption price.
2.2.2. Other Redemptions. Except with respect to a
First Closing Redemption or a Mandatory Subsequent Closing Redemption
and except as provided in Section 2.4, the General Partner shall have
the right to elect to fund the Redemption Amount through the issuance
of (i) the Share Amount or (ii) the Cash Amount.
2.2.3. Additional Redemption Price. Anything in this
Agreement to the contrary notwithstanding, in the event that (i) a
Specified Redemption Date occurs prior to the first Partnership
Record Date (as defined in the Partnership Agreement) to occur after
the Units being redeemed were issued, (ii) such Units were not issued
on the day immediately following a Partnership Record Date (as
defined in the Partnership Agreement), and (iii) such Units are being
redeemed for the First Closing Cash Amount or the Cash Amount, the
redemption price payable for the Units being redeemed shall be
increased by that portion of the Windfall Distribution Amount
allocable to the Units being redeemed.
2.3. Mandatory Subsequent Closing Redemption. Certain Limited
Partners have the right to receive certain Additional Units pursuant
to the provisions of the Contribution Agreement. If a Redeeming
Partner entitled to Additional Units exercises a Redemption Right on
one or more occasions with respect to Units issued at the First
Closing or is deemed to exercise a Redemption Right as to all the
Units issued to such Limited Partner at the First Closing ("Initial
Redeemed Units") and before Additional Units are issued, then such
Redeeming Partner shall be deemed to have exercised a Mandatory
Subsequent Closing Redemption with respect to the corresponding
percentage of Additional Units thereafter issuable with respect to
such Initial Redeemed Units, based on the number of Initial Redeemed
Units redeemed as a percentage of the total number of Units issued to
the Redeeming Partner at the First Closing. Additionally, to the
extent that subsequent to the First Closing a Limited Partner ceases
to be a Limited Partner by reason of having redeemed all his or her
Units, such person shall be deemed to have exercised a Mandatory
Subsequent Closing Redemption with respect to all the Additional
Units thereafter issuable to such person. To the extent that (i) the
Initial Redeemed Units were redeemed for the First Closing Cash
Amount, with respect to the corresponding percentage of the
Additional Units required to be redeemed hereunder, and (ii) to the
extent that subsequent to the First Closing a Limited Partner ceases
to be a Limited Partner by reason of having redeem all his or her
Units, with respect to all the Additional Units issuable to the
former Limited Partner,Regency, and not the General Partner, shall be
required to pay the Redemption Amount in the form of the Cash Amount,
plus the applicable portion of any Windfall Distribution Amount as
provided in Section 2.2.3. Regency, and not the General Partner,
shall be required to pay such redemption price. For purposes of
computing such Cash Amount, the Value shall be the value required by
the Contribution Agreement to be used in calculating the number of
Additional Units to be issued at the Subsequent Closing. For
example, if Additional Units are issued at a Subsequent Closing based
on a valuation of $26.5813 per Unit, $26.5813 shall be deemed to be
the Value for computing such Cash Amount rather than the Value as of
the date of the Subsequent Closing.
2.4. Redemption of Units Issued in Respect of ▇▇▇▇▇▇▇▇ and St.
▇▇▇, the Midland Group Earn-Out and ▇▇▇▇▇ Crossing Land Earn-Out.
Anything in this Agreement to the contrary notwithstanding (including
but not limited to Sections 4 and 5), Regency shall have the right to
require that (i) any Units issued to persons holding interests in the
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and St. ▇▇▇ Escrows (as defined in the Contribution
Agreement), and (ii) any Additional Units issued with respect to the
Midland Group Earn-Out or the ▇▇▇▇▇ Crossing Land Earn-Out (as those
terms are defined in the Contribution Agreement) be redeemed at the
Closing at which such Units are issued, at a redemption price equal
to the First Closing Cash Amount, plus the applicable portion of any
Windfall Distribution Amount as provided in Section 2.2.3. If
Regency does not exercise such right by delivering written notice
thereof at least seven (7) Business Days prior to the Closing, any
Limited Partner entitled to receive such Units shall have the right
to require Regency to redeem all or any portion of such Units at the
Closing at which they are issued, for the redemption price set forth
in the foregoing sentence, by delivering written notice of such
exercise to Regency within seven (7) Business Days prior to the date
of the Closing.
2.5. Conditions. As a condition to exercising a Redemption
Right, each Redeeming Partner shall execute a Notice of Redemption in
the form attached as Exhibit B and execute such other documents and
take such other actions as the General Partner may reasonably
require, including a Foreign Investment and Real Property Tax Act
("FIRPTA") or similar state and/or local affidavit (or make
appropriate arrangements for deposit with the General Partner for
payment to the Internal Revenue Service or any state or local
governmental authority of the amount required for the General Partner
to comply with the withholding provisions of such federal, state and
local laws, and if applicable, providing a withholding certificate
evidencing the Redeeming Partner's right to a reduced rate of FIRPTA
withholding). As a further condition to exercising a Redemption
Right, the Units to be redeemed shall be delivered to the Partnership
or Regency, as the case may be, free and clear of all liens, security
interests, deeds of trust, pledges and other encumbrances of any
nature whatsoever (collectively the "Liens"), subject to the
provisions of Section 6.3 of the Partnership Agreement (withholding).
In the event any Lien exists with respect to the Units to be
redeemed, neither the Partnership nor Regency (if Regency assumes the
Redemption Right pursuant to Section 3) shall have any obligation to
redeem such Units, unless, in connection therewith, the General
Partner has elected or is required to pay a portion of the Redemption
Amount in cash and such cash is sufficient to discharge such Lien.
Each Redeeming Partner hereby expressly authorizes the General
Partner to apply such portion of such cash as may be necessary to
discharge such Lien in full.
2.6. Security Interest. Adjustment Units (as defined in the
Contribution Agreement) issued in a private placement at the First
Closing are required to be pledged to Regency, and additional Units
issued pursuant to the Contribution Agreement may be required to be
pledged by the Midland Principals (as defined in the Contribution
Agreement) to Regency and the Partnership pursuant to Article 13 of
the Contribution Agreement (collectively, the "Pledged Units"). A
Limited Partner may not exercise a Redemption Right with respect to
Pledged Units that constitute Adjustment Units unless and until such
Units have been released from the Liens encumbering such Units. In
the event a Redeeming Partner exercises a Redemption Right with
respect to Pledged Units other than Adjustment Units, or in the event
a Redeeming Partner has previously exercised a Redemption Right with
respect to Units and the corresponding Additional Units to be
redeemed are Pledged Units, then such Redeeming Partner, as a
condition to the receipt of the Redemption Amount with respect to
such Pledged Units, shall be required to pledge and grant to Regency
and the Partnership a first priority security interest in any and all
Shares and/or cash delivered in payment of the redemption price with
respect to such Pledged Units and shall be required to consent to
Regency holding such Shares and/or cash as "Collateral" under Article
13 of the Contribution Agreement; provided, however, if cash is to be
paid to the Redeeming Partner with respect to such Pledged Units,
then such Redeeming Partner shall have the right to substitute a
letter of credit for such cash price as provided in Section 13.7.2(f)
of the Contribution Agreement.
2.7. Additional Rights. In case Regency shall issue rights,
options or warrants to all holders of its Shares entitling them to
subscribe for or purchase Shares or other securities convertible into
Shares at a price per share less than the current per share market
price as of the day before the "ex date" with respect to the issuance
or distribution requiring such computation, each Limited Partner
holding Redemption Rights shall be entitled to receive such number of
such rights, options or warrants, as the case may be, as he would
have been entitled to receive had he exercised all of his then
existing Redemption Rights immediately prior to the record date for
such issuance by Regency. The term "ex date" shall mean the first
date on which Shares trade regularly without the right to receive
such issuance or distribution. In case the Shares shall be changed
into the same or a different number of shares of any class or classes
of stock, whether by capital reorganization, reclassification, or
otherwise (other than subdivision or combination of Shares or a stock
dividend described in the definition of Unit Adjustment Factor), then
and in each such event the Limited Partners holding Redemption Rights
shall have the right thereafter to exercise their Redemption Rights
for the kind and amount of shares and other securities and property
that would have been received upon such reorganization,
reclassification or other change by holders of the number of Shares
with respect to which such Redemption Rights could have been
exercised immediately prior to such reorganization, reclassification
or change.
2.8. Distributions. A Redeeming Partner exercising a Redemption
Right with a Specified Redemption Date after a Partnership Record
Date on which the Redeeming Partner held the Units being redeemed and
prior to the payment of the distribution of Available Cash relating
to such Partnership Record Date shall retain the right to receive
such distribution with respect to such Units redeemed on such
Specified Redemption Date. Except as provided in the preceding
sentence, anything in the Partnership Agreement to the contrary
notwithstanding, the Redeeming Partner shall have no right, with
respect to any Unit so redeemed, to receive any distributions paid by
the Partnership after the Specified Redemption Date.
2.9. Limitation on Redemption Rights of Midland Principals.
Anything herein to the contrary notwithstanding, the Midland
Principals (as defined in the Contribution Agreement) may redeem
Units at a Closing for the First Closing Amount only to the extent
that they collectively hold at least 67% of the aggregate
consideration they receive at such Closing (other than Units they
receive for their interests in the ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and St. ▇▇▇
Properties and other than Units representing the Midland Group Earn-
Out (as defined in the Contribution Agreement)) in the form of Units
not so redeemed (the "Minimum Unit Requirement"). In the event that
the elections of the Midland Principals to immediately redeem Units
for the First Closing Amount do not in the aggregate satisfy the
Minimum Unit Requirement, each Midland Principal will be deemed to
elect to retain a pro rata number of Units based on the percentage
allocations set forth on Schedule 2.2(c) to the Contribution
Agreement sufficient in the aggregate to satisfy the Minimum Unit
Requirement.
3. Regency's Assumption of Right. Notwithstanding the provisions
of Section 2, Regency may, in its sole and absolute discretion, assume
directly and satisfy a Redemption Right by paying to the Redeeming Partner
the applicable redemption price on the Specified Redemption Date,
whereupon Regency shall acquire the Units offered for redemption by the
Redeeming Partner. In the event Regency shall exercise its right to
satisfy the Redemption Right in the manner described in the preceding
sentence, the Partnership shall have no obligation to pay any amount to
the Redeeming Partner with respect to such Redeeming Partner's exercise of
the Redemption Right, and each of the Redeeming Partner, the Partnership
and Regency shall treat the transaction between Regency and the Redeeming
Partner as a sale of the Redeeming Partner's Units to Regency for federal
income tax purposes. Regency agrees that whenever the Partnership elects
to pay the Share Amount, Regency shall guarantee the Partnership's
obligation to pay the Share Amount.
4. Business Combinations. Regency shall not engage in any merger,
consolidation or other business combination or transaction with or into
another person or sale of all or substantially all of its assets, or any
reclassification, or recapitalization (other than a change in par value,
or a change in the number of shares of Common Stock resulting from a
subdivision or combination as described in the definition of Unit
Adjustment Factor) ("Transaction"), unless as a result of the Transaction
such other person (i) agrees that each Limited Partner shall thereafter
remain entitled to exchange each Unit owned by such Limited Partner (after
application of the Unit Adjustment Factor) for an amount of cash,
securities, or other property equal to the greatest amount of cash,
securities or other property paid to a holder of one Share in
consideration of one Share which a Limited Partner would have received at
any time during the period from and after the date on which the
Transaction is consummated, as if the Limited Partner had exercised its
Redemption Right immediately prior to the Transaction and received the
Share Amount, and (ii) agrees to assume the General Partner's obligations
under this Agreement, provided, that if, in connection with the
Transaction, a purchase, tender or exchange offer shall have been made to
and accepted by the holders of more than 50 percent of the outstanding
shares of Common Stock, the holders of Units shall receive the greatest
amount of cash, securities, or other property which a Limited Partner
would have received had it exercised the Redemption Right and received the
Share Amount in redemption of its Units immediately prior to the
expiration of such purchase, tender or exchange offer. Prior to
consummating any such Transaction, Regency shall cause appropriate
amendments to be made to this Agreement pursuant to Article 4 (including
the definitions of Shares, Unit Adjustment Factor and Value) to carry out
the intent of the parties that the rights of the Limited Partners
hereunder shall not be prejudiced as the result of any such Transaction.
5. Notices From Regency.
5.1. Sales of Assets. The General Partner agrees that (a) so
long as there remain outstanding fifty percent (50%) of the total number
of Units (i) which were issued at Closings theretofore held pursuant to
the Contribution Agreement and (ii) which were not redeemed pursuant to a
First Closing Redemption or a Mandatory Subsequent Closing Redemption
(such Units are referred to hereinafter as the "Remaining Units"), or (b)
until March 1, 2003, if later, the General Partner shall provide each
holder of Remaining Units with notice of any sale or other taxable
transfer of a Property deemed to be contributed by such holder (or such
holder's predecessor in interest) to the Partnership pursuant to the
Contribution Agreement, within 60 days after the closing of such sale or
other transfer, in order to enable such holder to plan for the cash it
will need to pay the income tax liability it will incur as a result of
such transaction. Such notice obligation shall not apply to any transfer
of a Property in a tax-deferred exchange.
5.2. Periodic Reports. Regency shall promptly furnish to the
Limited Partners all periodic reports and other communications that
Regency sends to its own shareholders from time to time.
5.3. Changes in Unit Adjustment Factor. The General Partner
shall notify each Limited Partner in writing of any change made to the
Unit Adjustment Factor within ten (10) business days of the date such
change becomes effective.
5.4. Partnership Dissolution. Upon the occurrence of any event
causing the termination and dissolution of the Partnership pursuant to
Section 13.1 of the Partnership Agreement prior to the end of its stated
term, the General Partner shall provide written notice to the Limited
Partners, giving them at least 20 days in which to exercise their
Redemption Right prior to the distribution of any proceeds from the
liquidation of the Partnership.
6. Amendments. This Agreement may be amended with the written
consent of the Partnership, the General Partner and Limited Partners
holding a majority of the Units then outstanding (exclusive of Units held
by the General Partner, Regency or any of their Affiliates). In addition,
Regency may amend this Agreement without the consent of any other person
to carry out the intent of Section 4.
7. Notices. All notices hereunder shall be sent in the manner set
forth in Section 15.1 of the Partnership Agreement.
8. Applicable Law. This Agreement shall be construed in accordance
with and governed by the laws and judicial decisions of the State of
Delaware, without regard to the principles of conflicts of law.
9. Miscellaneous. All captions in this Agreement are for
convenience only and shall in no way define, limit, extend or describe the
scope or intent of any provisions hereof. This Agreement constitutes the
entire agreement among the parties with respect to the matters contained
herein and may not be modified or amended in any matter other than
pursuant to Section 4. If any provision of this Agreement is or becomes
invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not
be affected thereby. This Agreement shall terminate simultaneously with
any termination prior to the First Closing of the Contribution Agreement.
10. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their heirs, executors,
administrators, successors, legal representatives and permitted assigns.
THE MIDLAND PRINCIPALS: REGENCY REALTY CORPORATION
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Managing Director and CFO
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
REGENCY CENTERS, L.P.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: Regency Realty Corporation
Its General Partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Managing Director and CFO
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Third Party Management Assets
MIDLAND DEVELOPMENT GROUP, INC.,
a Missouri Corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
OTR Eastern Properties
Bent Tree Plaza (North Carolina)
Westchester Plaza (Ohio)
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Ohio)
Brookville Plaza (Virginia)
Lakeshore (Michigan)
▇▇▇▇▇ Crossing (Georgia)
▇▇▇▇▇▇▇ Square (Virginia)
Kernersville Marketplace (North Carolina)
▇▇▇▇▇▇▇ Crossing (North Carolina)
Shoppes at Mason (Ohio)
Lake Pine Plaza (North Carolina)
OTR/MIDLAND REALTY HOLDINGS, LTD.,
an Ohio Limited Liability Company
By: Midland Realty Holdings L.L.C.,
a Missouri Limited Liability Company,
Managing Member
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Managing Member
▇▇▇▇▇▇▇ Commons Shopping Center
No. 1712
▇▇▇▇▇▇▇ PARTNERS LIMITED PARTNER-
SHIP, an Ohio Limited Partnership
By: Midland-▇▇▇▇▇▇▇ Limited Partnership,
a Missouri Limited Partnership, General
Partner
By: ▇▇▇▇▇▇▇ Equities, Inc., a Missouri
Corporation, General Partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ PARTNERS,
an Ohio General Partnership
By: Midland Reynoldsburg Development
Company Limited Partnership, a
Missouri Limited Partnership, Managing
General Partner
By: Reynoldsburg Equities, Inc., a
Missouri Corporation, General
Partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Managing Member
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ DEVELOPMENT CO.
L.L.C., a Kentucky Limited Liability Company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Manager
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Manager
Maxtown Road Shopping Center
No. 1710
MAXTOWN PARTNERS, LTD.,
an Ohio Limited Liability Company
By: Maxtown Development Company L.L.C.,
a Missouri Limited Liability Company,
Voting Member
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Managing Member
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Managing Member
▇▇. ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇
▇ & M DEVELOPMENT COMPANY,
a Missouri General Partnership
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Managing Partner
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ DEVELOPMENT COMPANY,
an Ohio General Partnership
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Managing General
Partner
Acquisition Contracts
MIDLAND ACQUISITIONS, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
Acquisition Contracts
MIDLAND RALEIGH ACQUISITIONS, LLC,
a North Carolina Limited Liability Company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Manager
Acquisition Contracts
MIDLAND DALLAS ACQUISITIONS, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
Acquisition Contracts
MIDLAND MICHIGAN ACQUISITIONS, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
Monument
MIDLAND MONUMENT DEVELOPMENT
COMPANY, a Colorado Limited
Liability Company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Manager
Cheyenne, WY
MIDLAND CHEYENNE, WY DEVELOPMENT
COMPANY, a Wyoming Limited
Liability Company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Manager
Charlottesville
MIDLAND CHARLOTTESVILLE DEVELOP-
MENT COMPANY, a Virginia Limited
Liability Company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Manager
Waterford
MIDLAND WATERFORD DEVELOPMENT
COMPANY, a Michigan Limited
Liability Company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Manager
▇▇▇▇▇▇/▇▇▇▇▇
MIDLAND PARKER DEVELOPMENT
LLC, a Colorado Limited
Liability Company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Manager
Creekside
Village Center
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
MIDLAND REALTY HOLDINGS, L.L.C.,
a Missouri Limited Liability Company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Managing Member
SCHEDULE A
Unit Recipients
[to be added]
EXHIBIT A
NOTICE OF REDEMPTION AND INVESTOR QUESTIONNAIRE
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Redemption Agreement to which the undersigned,
Regency Centers, L.P. and Regency Realty Corporation are parties (the
"Agreement").
1. Notice of Redemption. The undersigned, being the record owner
of Units (not giving effect to the application of the Unit Adjustment
Factor) in the Partnership, in accordance with the terms of the Agreement,
hereby irrevocably (a) exercises the option to redeem the number of Units
set forth below for Shares (after giving effect to the application of the
Unit Adjustment Factor) or into such other cash, securities or other
property as shall be authorized under the terms of the Agreement, (b)
surrenders such Units and all right, title and interest therein, subject
to the provisions of the Agreement, and (c) directs that the Shares
issuable or other consideration deliverable upon exercise of the
Redemption Right be delivered to the undersigned at the address specified
below, and, if applicable, that a new certificate representing ownership
of Units not so redeemed be issued and delivered to the undersigned. The
undersigned directs that the Specified Redemption Date be the date set
forth below (or 5:00 p.m., Eastern time, on the First Business Day after
such date if such date is not a Business Day), or 5:00 p.m., Eastern Time,
on the tenth Business Day after receipt by the General Partner of this
Notice of Redemption, if later. The undersigned hereby appoints the
General Partner, with full power of substitution, as the undersigned's
attorney-in- fact to coordinate the exact time of the redemption on behalf
of the undersigned and any other Limited Partners exercising an option to
redeem effective as of the same Specified Redemption Date as that of the
undersigned.
2. Investor Questionnaire. The undersigned has completed an
Investor Questionnaire, the original of which is attached as Attachment A.
3. Withholding Tax of Non-U.S. Persons. If the undersigned is a
Non-U.S. Person, the undersigned will comply with the provisions of
Section 6.3 of the Partnership Agreement with respect to the withholding
obligations described therein.
4. Representation. The undersigned represents and warrants that
such Units being redeemed are free and clear of all liens, security
interests, deeds of trust, pledges and other encumbrances, subject to the
provisions of Section 6.3 of the Agreement.
1. Name and address of Redeeming Partner exercising the Redemption
Right:
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
2. Signature of Redeeming Partner:
_________________________________________ __________________________
Date
3. Date of Execution:
______________________________________________
4. Number of Units owned by the Redeeming Partner being redeemed
pursuant to this Notice of Redemption (check one):
[_] All Units owned by the undersigned
[_] Other (specify number if less than all): __________________ Units
5. Specified Redemption Date (which is the effective date of the
issuance of the Shares or payment of cash for this Notice of
Redemption):
_______________________________________
6. Shares issued or cash paid pursuant to the exercise of the Redemption
Right hereby should be sent to the address set forth in Paragraph 1
above, unless a different address is specified below. (If a
different address is requested, insert below.)
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
ATTACHMENT A
INVESTOR QUESTIONNAIRE
This Investor Questionnaire is to be completed by partners of Regency
Centers, L.P. (the "Partnership") redeeming limited partnership interests
in the Partnership into shares of voting common stock (collectively,
"Shares") of Regency Realty Corporation ("Regency"). The following
information is needed in order to ensure compliance with the requirements
of the private placement exemptions and applicable state exemptions, to
determine whether the undersigned is an accredited investor and to
determine whether the acquisition of Shares by the undersigned, if
applicable, will be in compliance with Article 5.2 of Regency's Articles
of Incorporation. The undersigned understands that Regency will rely upon
the information contained herein for purposes of such determination.
The undersigned also understands and agrees that, although Regency
will use its best efforts to keep the information provided in the answers
to this questionnaire strictly confidential, Regency may present this
questionnaire and the information provided in answers to it to such parties
as it deems advisable if called upon to establish the availability under
any federal or state securities laws of an exemption from registration of a
private placement or if the contents hereof are relevant to any issue in
any investigation, action, suit, or proceeding to which Regency is a party
or by which it is or may be bound.
The undersigned further understands that this questionnaire does not
constitute an offer by Regency to sell any securities but merely is a
request for information.
In accordance with the foregoing, the following representations and
information are hereby made and furnished.
I. I have read the reports and other documents filed by Regency under
Sections 13 and 14 of the Securities Exchange Act of 1934 during
the most recent fiscal year of Regency and the current year to date.
II. Except as indicated below, ownership of any Shares will be solely
for my own account, for investment, and not for the account of any
other person, or with a view to any resale, fractionalization, or
distribution thereof.
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
III. I am an "Accredited Investor" as defined in Rule 501(a) of Regulation
D promulgated under the Securities Act of 1933, as amended (the
"Act"), by virtue of meeting the standard(s) which I have initialed
below (please complete, if applicable):
(Please initial, in the space provided, the statement(s) applicable to
you.)
________ 1. I am a natural person and I have, or my spouse and I
jointly have, a net worth (i.e., total assets in excess
of total liabilities) in excess of $1,000,000.
or
--
________ 2. I am a natural person and have had an individual annual
income (exclusive of my spouse's income, regardless of
whether this is a joint investment with my spouse) in
excess of $200,000, or joint annual income with my
spouse in excess of $300,000, in each of the two most
recent years and reasonably expect to reach the same
income level in the current year.
or
--
________ 3. I am a corporation or a partnership with total assets in
excess of $5,000,000 not formed for the specific purpose
of acquiring an interest in the Partnership or Regency.
or
--
________ 4. I am a trust with total assets in excess of $5,000,000
not formed for the specific purpose of acquiring an
interest in the Partnership or Regency and investment
decisions for the trust are and will be directed by a
sophisticated person as described in Rule 506(b)(2)(ii)
of Regulation D promulgated under the Act.
or
--
________ 5. I am a bank as defined in Section 3(a)(2) of the Act or
a savings and loan association or other institution as
defined in Section 3(a)(5)(A) of the Act, either acting
in my individual capacity or in a fiduciary capacity.
or
--
________ 6. I am an insurance company as defined in Section 2(13)
of the Act.
or
--
________ 7. I am either an investment company registered under the
Investment Company Act of 1940 or a business development
company as defined in Section 2(a)(48) of the Investment
Company Act of 1940.
or
--
________ 8. I am a Small Business Investment Company licensed by
the U.S. Small Business Administration under Section
301(c) or 301(d) of the Small Business Investment Act
of 1958.
or
--
________ 9. I am a plan established and maintained by a state, its
political subdivisions, or any agency or instrumentality
of a state or its political subdivisions, for the
benefit of its employees, and the plan's total assets
exceed $5,000,000.
or
--
________ 10. I am an employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974, and the
investment decision is made by a plan fiduciary, as
defined in Section 3(21) of such Act, which is either a
bank, savings and loan association, insurance company, or
registered investment adviser, or the employee benefit
plan has total assets in excess of $5,000,000, or, if a
self-directed plan, the investment decisions are made
solely by persons that are "Accredited Investors".
or
--
________ 11. I am a private business development company as defined
in Section 202(a)(22) of the Investment Advisers Act
of 1940.
or
--
________ 12. I am a broker dealer registered pursuant to Section 15
of the Securities Exchange Act of 1934.
or
--
______ 13. I am an entity in which all of the equity owners qualify
as "Accredited Investors" under the standards set forth
in paragraphs 1 through 12 above.(1)
IV. I hereby represent and warrant that following the redemption, if I am an
individual, I will not Beneficially Own any shares of capital stock of
Regency ("Capital Stock") in excess of the Ownership Limit, and if the
undersigned is a Person other than an individual, no ultimate
individual owner of the Person will Beneficially own any shares of
Capital Stock of Regency in excess of the Ownership Limit. For
purposes of this representation, capitalized terms shall have the
following meanings:
_________________________________
(1) IF STATEMENT 13 ABOVE HAS BEEN INITIALED, EACH EQUITY OWNER OF THE
ENTITY MUST COMPLETE AN INVESTOR QUESTIONNAIRE.
(a) "Beneficial Ownership" shall mean ownership of Capital Stock
by a Person who would be treated as an owner of such shares of Capital
Stock, either directly or indirectly, under Section 542(a)(2) of the
Code, taking into account for this purpose (i) constructive ownership
determined under Section 544 of the Code, as modified by Sections
856(h)(1)(B) and 856(h)(3) of the Code; and (ii) any future amendment
to the Code which has the effect of modifying the ownership rules
under Section 542(a)(2) of the Code. The terms "Beneficial Owner,"
"Beneficially Owns" and "Beneficially Owned" shall have the correlative
meanings.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(c) "Ownership Limit" shall mean 7% by value of the outstanding
Capital Stock of Regency.
(d) "Person" shall mean an individual, corporation, partnership,
estate, trust (including a trust qualified under Section 401(a) or
501(c)(17) of the Code), a portion of a trust permanently set aside
for or to be used exclusively for the purposes described in Section
642(c) of the Code, association, private foundation within the meaning
of Section 509(a) of the Code, joint stock company or other entity,
and also includes a group as that term is used for purposes of
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended.
V. Please Indicate Type of Ownership:
________ INDIVIDUAL (one signature requred)
________ PARTNERSHIP (an authorized general partner must sign)
________ CORPORATION (an authorized corporate officer must sign)
________ JOINT TENANTS WITH RIGHT OR SURVIVORSHIP (both or all
parties must sign)
________ COMMUNITY PROPERTY (one signature required if Shares are
to be held in one name, i.e., managing spouses; two
signatures required if Shares are to be held in both
names)
________ TENANTS IN COMMON (both or all parties must sign)
________ OTHER - Trust, etc.
VI. Please complete the following if an individual:
Residence address: __________________________________
__________________________________
__________________________________
Citizenship (check one): [_] USA [_] Other
VII. If the undersigned is not a natural person, please provide the
following information with respect to the entity that will be a
holder, directly or indirectly, of the Shares:
1. The name and relationship to the undersigned entity of the
person who will make the investment decision on behalf of the
entity:
Name:___________________________________________________________
Relationship to Entity:_________________________________________
2. Address of Principal
Place of Business:______________________________________________
Number and Street (Post Office Box Unacceptable)
________________________________________________________________
City State or Province Country Zip or Postal Code
3. Date of Formation:______________________________________________
4. Jurisdiction of Organization:___________________________________
5. I.R.S. Tax Identification Number:_______________________________
6. Number of Shareholders, Partners or Beneficiaries:______________
7. Are any direct or indirect shareholders, partners or
beneficiaries Non-U.S. Persons?
_____ Yes _____ No
VIII. I represent to Regency that (a) the information contained herein
is complete and accurate and may be relied upon by Regency and
(b) I will notify Regency immediately of any material change in
any of such information prior to the redemption.
IN WITNESS WHEREOF, I have executed this Investor Questionnaire this
___ day of __________________, 199__.
_________________________________________
Type or Print Name
_________________________________________
Signature
_________________________________________
Type or Print Name of Spouse if interests
are held as Joint Tenants, Tenants in
Common, or Community Property
_________________________________________
Signature of Spouse if interests are
held as Joint Tenants, Tenants in
Common or Community Property
_________________________________________
If Applicable, Print Name of Entity
_________________________________________
Capacity of Individual Signing on Behalf
of Entity