Regency Centers, L.P.
Amendment Dated November 11, 2004 to the Fourth Amended
and Restated Agreement of Limited Partnership
This Amendment Dated November 11, 2004 to the Fourth Amended
and Restated Agreement of Limited
Partnership (this "Amendment") is entered into
as of the 11th day of November, 2004, by
and between Regency Centers Corporation
("RCC" or "General Partner"), a Florida
corporation (formerly known as Regency
Realty Corporation), as the general partner
of Regency Centers, L.P., a Delaware
limited partnership (the "Partnership"),
Belcrest Realty Corporation, a Delaware
corporation ("Belcrest") and Belport Realty
Corporation, a Delaware corporation
("Belport"; each of Belcrest and Belport a
"Series D Preferred Partner" and
collectively, the "Series D Preferred
Partners").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Series D Preferred Units were established by that
certain Amendment No. 3 to the Partnership
Agreement (the "Third Amendment"),
dated as of September 29, 1999;
WHEREAS, the Partnership and the Series D Preferred Partners
desire to amend the terms of the Series D
Preferred Units (as defined in the
Third Amendment), to provide that, inter
alia, from and after the date hereof,
the Series D Priority Return that accrues
on such Series D Preferred Units shall
accrue at the rate per annum of 7.45%, and
from and after the date hereof, the
holders of the Series D Preferred Units
shall have certain additional voting
rights as set forth herein;
WHEREAS, the parties hereto desire to amend that certain
Fourth Amended and Restated Agreement of
Limited Partnership, dated as of April
1, 2001 (as amended, the "Partnership
Agreement"), as set forth herein; and, any
terms capitalized herein but not defined
herein having the definitions therefor
set forth in the Partnership Agreement;
and
WHEREAS,
the parties hereto desire to cause an amendment to be
made to the Articles of Incorporation of
RCC amending the preferences, rights
and limitations of RCC's 500,000 shares of
authorized 9.125% Series D Cumulative
Redeemable Preferred Stock (the "Articles
of Amendment"; the Partnership
Agreement and the Articles of Amendment as
amended hereby are, collectively, the
"Amended Documents"), as set forth
herein.
NOW, THEREFORE, in consideration of the foregoing, of the
mutual promises set forth herein, and of
other good and valuable consideration,
the receipt and sufficiency of which are
hereby acknowledged, the parties
hereto, intending to be legally bound,
agree to continue the Partnership and
amend the Amended Documents as follows:
1.
Partnership Agreement. The Partnership Agreement is
hereby amended as follows:
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(a) The
definition of "Series D Preferred Units" in Section
1(a) of the Third Amendment is hereby
amended by deleting the term "9.125%"
therein and inserting the term "7.45%" in
lieu thereof.
(b) The
definition of "Series D Priority Return" in Section
1(a) of the Third Amendment is hereby
amended by deleting the term "9.125%"
therein and inserting the term "7.45%" in
lieu thereof.
(c) Section
4.8(a) of the Partnership Agreement is hereby
amended by deleting the term "9.125%"
therein and inserting the term "7.45%" in
lieu thereof.
(d) Section
4.8(c) of the Partnership Agreement is hereby
amended by deleting the term 9.125%"
therein and inserting the term "7.45%" in
lieu thereof.
(e) Section
4.8(e)(i) of the Partnership Agreement is hereby
amended by deleting the phrase "the fifth
(5th) anniversary of the issuance
date" therein and inserting "September 29,
2009" in lieu thereof.
(f) Section
4.8(f) of the Partnership Agreement is hereby
amended by inserting the following as new
paragraph (iii) after paragraph (ii)
therein:
"(iii) Certain Additional Voting Rights. Notwithstanding
anything herein to the contrary, so long as any Series D
Preferred
Units remain outstanding, RCC shall solicit the affirmative
vote of the holders of at least two-thirds (2/3) of the Series
D
Preferred Units outstanding at the time, prior to (i) electing
to
consummate any transaction or series of transactions which would
result
in a Change of Control of RCC or the Partnership, (ii) electing
to
consummate any transaction or series of transactions which would
result
in the common shares of RCC or any successor entity of RCC ceasing
to
be listed on at least one of the New York Stock Exchange, the
American
Stock Exchange or the NASDAQ National Market (or, in each case,
a
successor thereto) or (iii) electing not to qualify for taxation as
a
real estate investment trust under Section 856 et seq. of the Code.
For
the
purposes of this Section 4.8(f)(iii), "Change of Control" shall
mean: (i) any sale or other disposition of all or substantially all
of
the assets of the Partnership or RCC, as the case may be, to an
entity
that is not an Affiliate of RCC; or (ii) any consolidation,
amalgamation, merger, business combination, share exchange,
reorganization or similar transaction involving the Partnership or
RCC,
as the case may be, pursuant to which the Partners of the
Partnership
or the stockholders of RCC, as the case may be, immediately prior
to
the consummation of such transaction will own, directly or
indirectly,
less than a majority of the equity interests in the entity
surviving
such
transaction; provided, however, a Change of Control shall not
include a transaction or series of transactions consummated with
the
offeror of an unsolicited "hostile" tender offer for control of RCC
or
the Partnership. If the requisite holders of the Series D
Preferred
Units fail to approve any of the RCC actions specified in clauses
(i),
(ii) or (iii) of the first sentence of this Section 4.8(f)(iii)
(each a
"Mandatory Redemption Event") and RCC still effectuates such
action,
then the sole remedy of the holders of Series D Preferred Units
shall
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be that the Partnership shall immediately redeem all of the Series
D
Preferred Units outstanding at a redemption price, payable in
cash,
equal to the Capital Account balance of the holders of the Series
D
Preferred Units or, if greater, the original Capital Contribution
of
such holders plus the current Series D Priority Return, whether or
not
declared, to the date of such redemption to the extent not
previously
distributed; provided, however, that notwithstanding any
provision
hereof to the contrary, the actions specified in clause (i) of
the
first sentence of Section 4.8(f)(iii) shall not constitute a
Mandatory
Redemption Event if, on or prior to the date of the consummation
of
such transaction or transactions, a "nationally recognized
statistical
rating organization" (as such term is defined for purposes of
Rule
436(g)(2) promulgated under the Securities Act) shall have affirmed
the
rating accorded the securities of RCC immediately prior to the
public
announcement of such transaction or transactions, or shall have
upgraded such rating (or, if RCC is not the surviving entity in
such
transaction or transactions, affirmed that the rating of the
securities
of the successor to RCC shall be at least equal to the rating
accorded
the securities of RCC immediately prior to the public announcement
of
such transaction or transactions). The date of such redemption
shall be
the date of the Mandatory Redemption Event."
(g) Section
4.8(g)(i)(A) of the Partnership Agreement is
hereby amended by (x) deleting the phrase
"the tenth anniversary of the date of
issuance" from the first sentence thereof
and inserting the phrase "January 1,
2014" in lieu thereof, (y) deleting the
term 9.125%" from the first sentence
thereof and inserting the term "7.45%" in
lieu thereof and (z) deleting the
phrase "the tenth anniversary of the date
of issuance" from the second sentence
thereof and inserting the phrase "January
1, 2014" in lieu thereof.
(h) Section
4.8(g)(i)(C) of the Partnership Agreement is
hereby amended to read as follows:
"(C) As a condition to an exchange, each holder of
Series D Preferred Units agrees, subject to any agreements or
undertakings relating to confidentiality to which it may be bound,
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 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. Upon
the
occurrence of an event giving rise to exchange rights pursuant
to
Section 4.8(g)(i)(A), in the event an exchange of all or a portion
of
Series D Preferred Units pursuant to Section 4.8(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 D
Preferred Units, within five (5) Business Days following receipt of
the
Series D
Exchange Notice, by (i) fax, and (ii) registered mail, postage
prepaid, at the address of each such holder set forth in the
records of
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the Partnership. In such event, each holder of Series D Preferred
Units
shall be entitled to exchange, pursuant to the provision of
Section
4.8(g)(ii), a number of Series D 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.
Any
Series D Preferred Units not so exchanged are referred to as
the
"Series D Excess Units." The Board of Directors shall, within
six
months after the date of a Series D Exchange Notice that results
in
there being Series D Excess Units, either (in
